F v Minister for Education and Child Development - [2017] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Youth Court Appeal)
F & ANOR v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASCFC 71
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Blue)
26 June 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - RELEVANT CONSIDERATIONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - CONTROL OVER PROCEEDINGS - REFUSAL OF ADJOURNMENT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - LEGAL REPRESENTATION
Appeal against order by a Judge of the Youth Court that a child be placed under the guardianship of the Minister until attaining the age of 18.
The child, C, was born in December 2015 and removed immediately from the care of his parents by a Families SA officer pursuant to section 16 of the Children’s Protection Act 1993.
In January 2016 the Minister brought an application in the Youth Court seeking an order that C be placed under his guardianship until 18. It was the Minister’s case that one or other of the appellants, being C’s parents, had been responsible for life threatening injuries earlier suffered by the two year old daughter of the female appellant and that both of the appellants had hit the female appellant’s three year old son.
The trial was originally listed for March 2016 but this date was vacated and it was ultimately listed for July 2016.
At the commencement of trial, the appellants applied for a stay until they were both legally represented. They had been refused legal aid by the Legal Services Commission. The Judge refused the application and proceeded with the trial.
One of the witnesses called at trial was Ms Nadge, an employee of the New South Wales Department of Family and Community Services, who gave evidence of statements made to her by the female appellant’s three year old son. Ms Nadge admitted making contact with the female appellant’s former husband and family after the Department ceased to be responsible for the welfare of the female appellant’s children.
The Judge was satisfied that one of the appellants was responsible for the injuries to the female appellant’s daughter and made an order as sought by the Minister.
The appellants appeal against the order on principal ground that the Judge erred in declining to stay proceedings pending their being legally represented. The appellants also contend that the Judge erred in giving weight to the evidence of Ms Nadge; erred in admitting evidence of an interview with the female appellant’s three year old son; erred in finding that there had been a lack of engagement by the appellants with Families SA; erred in finding that one of the appellants was responsible for injuries to the female appellant’s two year old daughter; did not adequately take into account the best interests of the child; and did not give proper consideration to placing the child in the guardianship of the Minister for 12 months.
Held by Blue J (Vanstone and Peek JJ agreeing):
1. The Judge had no power to stay proceedings pending the appellants being legally represented given the nature of the proceedings (at [72]).
2. The appellants’ challenges to the Judge’s factual findings concerning the evidence of Ms Nadge; the interview of the female appellant’s three year old son; the lack of engagement by the appellants with Families SA; and the cause of the injuries to the female appellant’s two year old daughter fail (at [82]-[86]).
3. The appellants’ complaints that the Judge did not adequately take into account the best interests of the child and did not give proper consideration to placing the child in the Minister’s guardianship for 12 months are not established (at [87]-[90]).
4. Appeal dismissed (at [91]).
Children's Protection Act 1993 ss 3(1), 6(2)(aa), 16, 27, 28, 29, 30, 31, 32, 33, 37(1), 38, 39, 40, 44B and 45; Youth Court (Children's Protection) Rules 2012 (SA) s 6; International Covenant on Civil and Political Rights Art 14.1, referred to.
B v B (1988) 82 ALR 584; Dietrich v The Queen (1992) 177 CLR 292; The State of New South Wales v Canellis (1994) 181 CLR 309, discussed.
Abse v Smith [1986] QB 536; Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104; Damjanovic v Maley (2002) 55 NSWLR 149; Elliot v Australian Securities and Investments Commission (2004) 10 VR 369; Ex parte Browne (1913) 13 SR (NSW) 593; Gajic v Harb [2011] VSCA 132; Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32; L, G v Minister for Families and Communities (2012) 113 SASR 152; Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; Re GJ Mannix Ltd [1984] 1 NZLR 309; Rivera v United States of American [2004] FCAFC 154; Tomasevic v Travaglini [2007] VSC 337, considered.

F & ANOR v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASCFC 71
VANSTONE J:

I would dismiss the appeal.
I have been provided with the reasons of Blue J in draft.
As Blue J mentions, prior to the trial in the Court below the appellants apparently wrote to the Youth Court registry asking for permission to be represented at trial by a Mr Tony Tonkin, who is not a legal practitioner, but who is apparently an office-bearer associated with something called the Child Protection Party. We were told that the Deputy Registrar responded, advising that the request was refused. The refusal is not the subject of a ground of appeal. In those circumstances I prefer to express no view as to this aspect of the chain of events. With that reservation, I agree with the reasons of Blue J.
PEEK J:
I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J:
This is an appeal against an order by a Judge of the Youth Court made under section 38 of the Children’s Protection Act 1993 (SA) (the Act) that a child, C, be placed under the guardianship of the respondent Minister for Education and Child Development until C attains 18 years of age.
The appellants, F and M, the father and mother of C, appeal against the order. They appeared in person on the appeal and had appeared in person at the trial in the Youth Court.
The appellants’ principal contention on appeal is that they were denied procedural fairness because the Judge refused their application at the beginning of the trial for a stay of proceedings until they were both legally represented[1] and consequentially they were at a disadvantage in the presentation of evidence and argument on the Minister’s application.[2]
[1] Ground 1.
[2] Grounds 2, 3 and 4.
The appellants also complain that the Judge erred in giving weight to the evidence of Jennifer Nadge given that she admitted a social relationship with M’s family whom she had visited on a social basis; in admitting evidence of an interview with B being the three year old half-brother of C when he had failed a truth and lies test and the questioning was leading; in finding that there had been a lack of engagement by the appellants with Families SA; and in finding that one of the appellants was responsible for injuries to C’s two year old half-sister S.[3]
[3] Ground 3.
The appellants also complain that the Judge did not adequately take into account the best interests of the child which is to be with the biological parents and did not give proper consideration to placing C in the guardianship of the Minister for 12 months to give them an opportunity to pursue reunification.[4]
[4] Ground 2.
Background
The appellants were each born in 1991.
Before entering into a relationship with F, M was married to H. They had two children: B born in January 2012 and S born in March 2013. In January 2015 M locked H out of the family home and he went to stay with M’s mother. For a short time, B and S alternated between staying with M and staying with H.
In January 2015 M and F commenced a relationship. In late January 2015 they moved to a town on the River Murray in New South Wales near Mildura, taking B and S with them.
On 14 February 2015 S suffered a spiral fracture of her left humerus. On 17 February she was seen by her general practitioner and at the emergency department at Mildura Base Hospital where the fracture was diagnosed and her arm was placed in a cast. She also had abdominal and buttock bruising when seen at that time.
On 20 February 2015 S was seen by her general practitioner who observed right fronto-temporal swelling but no skull fracture was identified on x-ray.
On 3 March 2015 S suffered traumatic brain injuries, including frontoparietal subdural haematoma (brain bruising), cerebral oedema (brain swelling), cerebral haemorrhage (brain bleeding) and cerebral infarct (brain tissue death). She also suffered right-sided retinal haemorrhages, extensive neck oedema and extensive bruising to her face, ear, arm, back and buttocks. She was admitted to Mildura Base Hospital and transferred to the Royal Children’s Hospital in Melbourne. Her brain injuries would have been fatal without neurosurgery and intensive care.
On 4 March 2015 Dr Trusha Brys, a paediatrician employed at the Victorian Forensic Paediatric Medical Service at the Royal Children’s Hospital, interviewed M and arranged for her colleague, Dr Gates, to interview by telephone S’s treating doctors in Mildura. Dr Brys examined S on 5 March. Dr Brys interviewed H and M’s mother, who arrived in Melbourne on 6 March, and also read the Mildura Base Hospital and Royal Children’s Hospital hospital notes.
On 11 March 2015 Dr Brys completed a medical report concerning S’s injuries. She set out the above history together with medical details of S’s injuries. She said that M initially told her that S’s left arm injury had been unwitnessed but later said that she saw B push S off the bed and S fall on her outstretched arm; that in mid-February 2015 S started having significant behavioural issues and B started becoming aggressive; that S started throwing herself on the ground and head banging; that on 2 March S tripped over a step and landed on her face; that she observed on 3 March that S had bumps and bruises; and that late that evening she heard a thud and found S “having a fit” in her room and phoned 000. Dr Brys expressed the opinions that:
·it was “almost certain” that the brain injuries observed could not have been caused by S throwing herself on the floor or head banging and “abusive head trauma should be considered to be the most likely explanation” for S’s head injury;
·the pattern of bruising was “highly suggestive” of physical assault;
·the “most likely” contributing cause of retinal haemorrhages in children who also have signs of abusive head trauma is shaking and shaking “probably” caused those injuries;
·the combination of the head and neck injuries “suggests that acceleration-deceleration forces associated with shaking have been involved”;
·the bruises to S’s ears were likely caused by blunt force trauma such as a smack with a hand or object or pinching of the ear;
·a fall from a bed as a result of being pushed off by her brother “did not readily explain” the spiral fracture of S’s left humerus;
·the combination of S’s head and neck injuries and the bruising and arm fractures “strongly suggests that assault is the common causative mechanism”;
·it is “extremely unlikely” from the combination of the head and neck injuries that “some or all of S’s injuries were self-inflicted”;
·the history given by M “changed over time and information has been inconsistent with information obtained from others”; and
·S “suffered a life threatening head injury that almost certainly would have been fatal if neurosurgery and intensive care had not been provided”.
Dr Brys recommended that in the immediate term S not be placed in M’s care and in the longer term consideration be given by Child Protection practitioners and the Children’s Court to the negative impact upon S’s psychological well-being of any ongoing contact with the appellants.
In the meantime, on 4 March 2015 B was examined by Dr Paul Tembo, a paediatrician at Mildura Base Hospital. He observed bruises, including two on B’s forehead, four on his back and one on his shin. B was kept overnight at the hospital for protection. The New South Wales Department of Family and Community Services (FACS) commenced an investigation whether B was at risk of harm.
On 5 March 2015 Ruth Saulo, a FACS caseworker, interviewed B. Ms Saulo observed that B had a bruise on his left ear. She asked him how he got the bruise. He said that he was being a bad boy and F told him he was a naughty boy. He said that F always smacked him, and demonstrated with an open hand across the face.
On 5 March 2015 Jennifer Nadge, another FACS caseworker, interviewed B. B told her that M hit him with a closed hand in the head, face and on the body and F hit him with an open hand in the head. B said that M also hit S in the head. Ms Nadge administered a truth and lies test, which he failed. However, Ms Nadge formed the belief, based on her experience, that B was telling the truth about being hit by M and F.
On 5 March 2015 FACS removed B from the care of the appellants and arranged for him to be cared temporarily by an Out of Home Care Carer. Sally Woulfe, another FACS caseworker, who was to transport B to the Carer, told him that she had come to take him “home”. B became extremely upset and fearful, repeating several times that he did not want to go home and clinging to Ms Woulfe. She told him that he was not going home to the appellants but to a nice lady and he calmed down.
On 11 March 2015 FACS applied to the New South Wales Children’s Court for an interim order that B and S be placed under the parental responsibility of the Minister for 12 months. On 10 April 2015 the Children’s Court made an order to that effect. They were placed by the Minister under the care of H, who was residing with M’s mother and her family at that stage. Both M’s mother and M’s grandmother assisted H in looking after B and S. Ultimately on 2 February 2016 the Childrens Court ordered that parental responsibility for B and S be allocated to H to the exclusion of M until they attain 18 years of age.
In December 2015 C was born. C was removed immediately from the care of M and F by a Families SA officer pursuant to section 16 of the Act.
Between 16 December 2015 and 11 January 2016, in conjunction with Families SA employees, Kristy Moore, a senior social worker at Flinders Medical Centre Child Protection Service, conducted a series of interviews of the appellants.
On 15 January 2016 the Minister filed in the Youth Court a care and protection application seeking an order that C be placed under the guardianship of the Minister until 18. The grounds relied upon were that there was a significant risk that C would suffer serious harm to his physical, psychological or emotional well-being against which he should have but does not have proper protection; the appellants were unable to care for and protect their children; and/or the appellants were unable to exercise adequate supervision and control over them.
On 18 February 2016 Ms Moore completed a report assessing the parenting ability and suitability of the appellants. She described at length her interviews and observations of them. She said that, while they demonstrated some insight, they remained dismissive, minimising and externalising with regard to many issues and particularly concerning serious injuries sustained by S. Until there was a reasonable explanation to account for S’s injuries and targeted intervention to address the factors leading to them, a pathway forward could not be navigated in which the parenting environment provided by the appellants would be safe enough for a child. F demonstrated minimal empathy or insight into the children’s worlds or their needs or the injuries suffered by S. There were inconsistencies in the accounts given by each of the appellants.
On 18 February 2016 a Magistrate in the Youth Court listed the Minister’s application for trial to commence on 23 March 2016. At that stage, each of the appellants was represented by solicitors: F by Ms Micallef and M by Mr Wyatt. Funding had been granted by the Legal Services Commission for advice but applications for funding for trial had not yet been determined.
On 8 and 14 March 2016 Mr Wyatt on behalf of M and Ms Micallef on behalf of F filed in the Youth Court responses denying the Minister’s allegations but not opposing C being placed under the guardianship of the Minister for 12 months.
In mid March 2016 the Legal Services Commission decided not to grant legal aid funding for trial. M approached another solicitor, Ms Carter, who lodged a fresh application for funding for trial.
On 22 March 2016 Ms Carter sent a letter to the Court saying that she had only recently been instructed to act for M, the Legal Services Commission had not yet made a decision in relation to her application for funding and seeking an adjournment of the trial.
On 23 March 2016 the Judge vacated the trial listed to commence on that day, tentatively listed the trial to commence on 26 April and adjourned the matter for mention to 30 March.
In mid to late March 2016 M commenced weekly “circle of security” sessions with Carolyn Vince, which continued for eight weeks and then F commenced circle of security sessions with Ms Vince. Ms Vince is a social worker who uses a program entitled circle of security which involves parents reflecting on their own parenting as children to improve their understanding of parenting their own children.
On 30 March 2016 Ms Carter sent a facsimile to the Court saying that the Legal Services Commission had still not made a decision on funding and she was not available for a trial on 26 April. The Judge listed the trial to commence instead on 1 June.
The Legal Services Commission subsequently decided not to provide funding for Ms Carter to represent M at trial. Ms Carter on behalf of M lodged an internal appeal against the refusal of legal aid funding.
On 31 May 2016 Ms Voumard appeared for M and informed the Judge that the Legal Services Commission had declined M’s legal aid application and her appeal against that decision was listed for 2 June. The Judge vacated the trial date and adjourned the matter to 9 June for mention. On that date Ms Voumard informed the Judge that the appeal against the refusal of legal aid funding had been unsuccessful. The Judge listed the trial to commence on 5 July on the basis that the appellants would appear in person.
On 27 June 2016 the appellants wrote letters to the Court requesting that they be permitted to be represented by Tony Tonkin, a social worker and Chairman of the Child Protection Political Party. On 30 June the Deputy Registrar responded saying that the Judge had refused this request. On the appellants seeking clarification whether the refusal was due to the identity of the proposed representative or independent of it, the Deputy Registrar said that the Judge had advised that many parents were unable to obtain legal assistance and it was not unusual for parties to be unrepresented at trial.
The trial
At the commencement of trial, F applied for a stay of proceedings until both parents were legally represented, supported by an affidavit in which he said that he relied on the Dietrich principle, rule 6 of the Youth Court (Children’s Protection) Rules 2012 (SA) (the Rules) and article 14.1 of the International Covenant on Civil and Political Rights (the ICCPR).

The Judge refused the application, having regard to the aims and objectives of the Act, section 39 of the Act which requires proceedings to be heard expeditiously and within ten weeks of institution and the lengthy history of the matter to date.
The Minister called Dr Brys, Ms Nadge and Ms Moore as witnesses. They gave oral evidence and their reports were tendered. They were cross-examined at some length by F.
The Minister tendered reports by various professionals who had seen or examined B and S; records, notes and reports by Families SA and FACS in respect of interviews of the appellants; a report by Families SA of 13 January 2016; and the orders made by the Children’s Court of New South Wales.
The Minister tendered a statement by F’s former partner who said that they had been in a relationship between October 2013 and February 2014; she noticed a pattern of suspicious injuries to her three year old son during the relationship; her son was frightened whenever he was around F; and F was physically abusive towards her.
The Minister tendered records of F’s criminal history. They showed that he had been found guilty on multiple occasions and had multiple convictions for fraud, stealing, forgery and other dishonesty offences. Between June 2008 and September 2012 he appeared in court on 13 occasions on which he was found guilty or convicted of dishonesty offences. In May 2009 he was sentenced to imprisonment for one and a half years; in January 2010 he was sentenced to imprisonment for one year; in July 2011 he was sentenced to imprisonment for two years and in September 2012 he was sentenced to imprisonment for three years to be partially suspended after serving one year. In July 2012 he was convicted of assault occasioning bodily harm whilst armed and in company committed in May 2010.
The appellants elected not to give evidence but called Ms Vince to give evidence about the circle of security sessions she undertook with them.
The reasons for judgment
The Judge summarised the background and the evidence. The Judge accepted Dr Brys, Ms Nadge and Ms Moore as witnesses of truth and accepted their evidence and their opinions. The Judge also accepted Ms Vince as a witness of truth but found that her evidence was of little assistance because her opinions were reliant on information provided by the appellants.
The Judge found that S suffered the injuries described by Dr Brys and that it was extremely unlikely that the severe injuries were self-inflicted. The Judge accepted the opinion expressed by Ms Moore that, absent a plausible explanation for S’s injuries, no intervention could ensure the safety of C in the care of the appellants; both appellants faced entrenched and complex personal issues; and they remained dismissive, minimising and externalising with respect to M’s children.
The Judge referred to F’s history of dishonesty offences and his 2012 conviction for assault. The Judge referred to the statement by F’s former partner that he had been physically abusive towards her and appeared to have been physically abusive towards her son.
The Judge concluded that there was a significant risk that C would suffer serious harm to his physical, psychological or emotional well-being against which he should have but does not have proper protection; the appellants were unable to care for and protect their children; and the appellants were unable to exercise adequate supervision and control over them.
The Judge said that, as it was clear that one of the appellants was responsible for inflicting the injuries on S, there were significant, entrenched and complex issues faced by the appellants that could not be addressed. In view of the age of C and the lack of engagement by the appellants with Families SA, it was in the best interests of C that he be placed under the guardianship of the Minister until attaining the age of 18 years.
The Judge ordered that C be placed under the guardianship of the Minister until attaining 18 years of age and that M and F have access at such times, dates and places as may be agreed between them and the Minister.
The statutory regime
Section 16 of the Act confers on an authorised department employee or police officer power to remove a child into the care of the Chief Executive’s nominee if he or she believes on reasonable grounds that the child is in a situation of serious danger from which it is necessary to remove the child to protect the child from harm (or further harm).
Section 44B requires the Chief Executive to issue an instrument of guardianship placing a child under the guardianship of the Minister upon becoming aware that a child is residing with a parent who has been found guilty of a qualifying offence.[5]
[5] Murder, manslaughter, criminal neglect of a child or vulnerable adult resulting in death or serious harm, intentionally or recklessly causing serious harm, intentionally or recklessly endangering life or creating risk of serious harm (including corresponding offences in other jurisdictions) or attempting to commit such an offence.
Sections 27 to 33 provide for the convening of a family care meeting attended by, amongst others, a child’s guardians with a view to making a decision about the care and protection of the child.
Section 38 empowers the Youth Court, on the application of the Minister, to make an order, amongst others, placing a child under the guardianship of the Minister or another person for a specified period not exceeding 12 months or until the child attains 18 years of age. The Court is empowered to make such an order if the Court is satisfied that:
1.the child is “at risk” and an order should be made;
2.an instrument of guardianship made under section 44B was properly issued, ie a parent with whom the child was residing had been found guilty of a qualifying offence and an order should be made; or
3.the child is already under care and protection under an arrangement made at a family care meeting; significant psychological injury would probably be avoided if, and it would be in the best interests of the child that, those arrangements continue; and an order should be made.
A child is at risk if, amongst other things:
1.the child has been or is being abused or neglected;
2.      a person with whom the child resides has abused or neglected another child and there is a reasonable likelihood of that person abusing or neglecting the child in question;
3.     there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing against which he or she should have, but does not have, proper protection;
4.     the child’s guardians are unable or unwilling to care for and protect the child; or
5.     the child’s guardians are unable or unwilling to exercise adequate supervision and control over the child.
Section 40 empowers the Youth Court to vary or revoke an order on application by a party.
Section 39 requires all proceedings to be dealt with expeditiously, with due regard to the degree of urgency of each particular case, and precludes the Youth Court exercising its general power of adjournment of a guardianship application so that the period between lodging of the application and commencement of the hearing exceeds ten weeks.
Subsection 3(1) provides that the object of the Act of keeping children safe from harm must be the paramount consideration in the administration of the Act.
Subsection 45(1) provides that the Court is not bound by the rules of evidence and may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Subsection 45(2) provides that a fact to be proved in a proceeding is sufficiently proved if proved on the balance of probabilities.
Stay pending legal representation
The appellants’ principal contention is that they were denied procedural fairness because the Judge refused their application for a stay until they were both legally represented and consequentially they were at a disadvantage as to the presentation of evidence and argument on the Minister’s application.
The appellants rely on Dietrich v The Queen[6] in which the High Court held that a court has jurisdiction to grant an adjournment or stay proceedings at a trial until an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.[7] The foundation of the principle recognised in Dietrich v The Queen is the right of an accused to a fair trial.[8]
[6] (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 323–325 per Brennan J, 330 per Deane J, 349-350 per Dawson J, 360 per Toohey J and 364-365 per Gaudron J.
[7] As summarised by the High Court in The State of New South Wales v Canellis (1994) 181 CLR 309 at 328 per Mason CJ, Dawson, Toohey and McHugh JJ. See Dietrich v The Queen (1992) 177 CLR 292 at 315 per Mason CJ and McHugh J; 357 per Toohey J and 374-375 per Gaudron J.
[8] The State of New South Wales v Canellis (1994) 181 CLR 309 at 328 per Mason CJ, Dawson, Toohey and McHugh JJ.
The appellants accept that Dietrich v The Queen is only authority for the existence of power to stay or adjourn proceedings in the case of an accused charged with a serious criminal offence but contend that the underlying principle applies also to civil proceedings and especially to guardianship proceedings under the Act.
However, in The State of New South Wales v Canellis,[9] Mason CJ, Dawson, Toohey and McHugh JJ said:
There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious.[10]
[9] (1994) 181 CLR 309.
[10] At 328.
Intermediate appellate courts in Australia have since the High Court’s decision in The State of New South Wales v Canellis consistently held that a court in civil proceedings has no power to stay the proceedings on the ground that the defendant cannot afford legal representation.[11]
[11] Nguyen v Minster for Immigration and Multicultural Affairs [2000] FCA 1265 at [22]-[24] and [33]-[36] per Sackville, Marshall and Lehane JJ; Rivera v United States of America [2004] FCAFC 154 at [27]-[29] per Heerey, Sundberg and Crennan JJ; Elliott v Australian Securities and Investments Commission [2004] VSCA 54; (2004) 10 VR 369 at [160]-[162] per Warren CJ, Charles JA and O’Bryan AJA; Gajic v Harb [2011] VSCA 132 at [17]-[21] per Macaulay AJA (with whom Tate JA agreed).
It is now clearly established in Australia that there is no power in civil proceedings to stay or adjourn proceedings until an indigent defendant is provided with legal representation. While it may be accepted that an order removing a child from the custody of his or her parents is a serious exercise of State power,[12] nevertheless a guardianship application by the Minister remains a civil proceeding governed by the authorities. In addition, a guardianship application involves more than the interests of the parties to the proceeding and the welfare of the child in question is the paramount consideration for the Court.[13] There is a public interest in the expeditious determination of what is in the best interests of the child which would be jeopardised by the grant of a stay having regard only to the interests of the parents.[14]
[12] See L, G v Minister for Families and Communities [2012] SASCFC 72, (2012) 113 SASR 152 at [111] per Stanley J (with whom Vanstone JJ agreed).
[13] Child Protection Act 1993 (SA) sections 3(1), 37(1) and 38(2) and (2a); L, G v Minister for Families and Communities (2012) 113 SASR 152 at [111] per Stanley J (with whom Vanstone JJ agreed).
[14] This is implicit in the Act and is also explicitly provided for by section 39.
In the alternative to their reliance upon the Dietrich principle the appellants rely upon the wider principle of procedural fairness. However, in The State of New South Wales v Canellis,[15] Mason CJ, Dawson, Toohey and McHugh JJ observed that “Dietrich may possibly be regarded as a manifestation of the rules of procedural fairness”[16] and that the Court of Appeal had relied on the wider principle of procedural fairness and said:
And, so far, the Dietrich principle excepted, there is no authority for the proposition that the rules of procedural fairness extend to a requirement that legal representation be provided to a party at a trial, let alone a witness at an inquiry.[17]
[15] (1994) 181 CLR 309.
[16] At 329.
[17] At 330.
The appellants also rely on rule 6 of the Rules which provides:
The object of these rules is the fair, effective, expeditious and efficient conduct of the proceedings of the Court.
This rule does not purport to confer power on the Court to stay proceedings until defendants to guardianship proceedings are legally represented.
The appellants also rely on article 14.1 of the ICCPR which provides:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
Australia’s ratification of the ICCPR does not incorporate article 14 as a provision of the domestic law.[18] However, even if it were so regarded, article 14.1 does not address legal representation and is incapable of resulting in conferral of power on a domestic court to stay proceedings until defendants to the proceedings are legally represented.
[18] There is some authority suggesting that such a treaty can be used to assist in the interpretation of a statutory provision, exercise of discretions or development of the common law – see for example Tomasevic v Travaglini [2007] VSC 337 at [73]-[74] per Bell J – but whether this is so need not be considered on this appeal.
The Youth Court had no power to stay the proceedings until legal representation was provided for the appellants. On the contrary, section 39 of the Act required the Court to hear the proceeding expeditiously and in any event within ten weeks of the institution.[19] This ground of appeal and the consequential grounds of appeal are not established.
[19] In this respect, the trial was originally listed to commence on 23 March 2016, within the requisite 10 week period. On 23 March, this trial date was vacated and the Judge ultimately relisted the trial to commence on 1 June and on 31 May the Judge relisted the trial to commence on 5 July. This was 23 weeks after institution of the proceedings. It is difficult to see how the Judge had power to adjourn the trial for this period given the explicit requirements of section 39. In any event, the appellants had already been the beneficiaries of extremely favourable exercises of discretion by the Judge.
Representation by lay advocate
It is not a ground of appeal that the Judge erred in refusing the appellants’ application to be represented by a lay advocate and it was not addressed in their summary of argument or submissions in chief on appeal. However, because the refusal by the Judge was mentioned briefly as part of the contextual narrative in ground 1 of the notice of appeal and by F in his submissions in reply, I make some brief observations about the Judge’s refusal.
The starting point is that only a qualified and admitted legal practitioner holding a current practising certificate (a legal practitioner) has a right to represent or appear for a party in a legal proceeding in a court.[20] Ordinarily, if an individual party is not represented by a legal practitioner in such a proceeding the only option is for the party to represent himself or herself.[21]
[20] This is of course subject to legislative provision otherwise. There is nothing in the Youth Court Act 1993 (SA) or the Children’s Protection Act 1993 (SA) that addresses the right of representation or audience.
[21] Special rules have developed in relation to courts exercising a discretion to permit a director to represent a company where the person is owner and controller of the company. The position in respect of such corporate parties need not be considered here.
The right of a legal practitioner to represent a party in proceedings is part of a complex set of rights, privileges and obligations as between legal practitioner and the court, the client and the opponent which operate as a cohesive system of checks and balances informed by and operating in the public interest.[22] Thus a legal practitioner owes to the court paramount duties which override duties owed to the client,[23] including duties to exercise independent judgment, not advance a case or contention not reasonably open, act with candour in presentation of the law and facts, maintain the integrity of witnesses’ evidence, have sufficient basis to make serious allegations, obey and uphold the law and comply with formal undertakings.[24] Legal practitioners owe particular duties in acting for parents in matters in which the interests of children are paramount.[25] Legal practitioners are subject to discipline in the inherent jurisdiction of the court.[26] Legal practitioners owe duties of confidence to clients.[27] Confidential communications between legal practitioners and clients for the purpose of advice or litigation are protected from disclosure by legal professional privilege to foster candour.[28] Legal practitioners owe fiduciary duties and duties of care to clients[29] and are required to be insured against liability for breach of duty.[30]
[22] Abse v Smith [1986] QB 536 at 545-548 per Sir John Donaldson MR (with whom Glidewell and May LJJ agreed); Ex parte Browne (1913) 13 SR (NSW) 593 at 597 per Pring J.
[23] Abse v Smith [1986] QB 536 at 545-546 per Sir John Donaldson MR (with whom Glidewell and May LJJ agreed).
[24] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [17.10]-[17.250], [19.05]-[19.50], [22.25]-[22.50].
[25] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [18.130].
[26] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [17.20]-[17.30].
[27] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [4.70].
[28] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [11.05]-[11.15].
[29] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [4.40]-[4.65] and [5.05]-[5.20].
[30] G E Dal Pont Lawyers’ Professional Responsibility 5 ed (2013) [5.315].
A court has power to grant a dispensation from the rule that ordinarily a party can only be represented by a legal practitioner so as to permit a party to be represented by a lay advocate.[31] However, a lay advocate is not subject to the checks and balances referred to in the previous paragraph. The discretion to permit lay representation should only be exercised in exceptional circumstances in which the administration of justice requires dispensation to be given.[32]
[31] Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 at [33] per Stein JA (with whom Mason P and Sheller JA agreed); Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340, (2005) 93 SASR 32 at [12] and [18] per Bleby J (with whom Doyle CJ agreed).
[32] Abse v Smith [1986] QB 536 at 545-548 per Sir John Donaldson MR (with whom Glidewell and May LJJ agreed); Re GJ Mannix Ltd [1984] 1 NZLR 309 at 314 per Cooke J, 316 per McMullin J and 317 per Somers J; Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at 111-112 per Samuels JA; Damjanovic v Maley (2002) 55 NSWLR 149 at [62] and [83] per Stein JA (with whom Mason P and Sheller JA agreed); Giancaspro v SHRM (Australia) Pty Ltd, (2005) 93 SASR 32 at [12] and [18] per Bleby J (with whom Doyle CJ agreed).

Where the case is complex, this is usually a strong factor against exercise of the discretion to permit a lay advocate to represent a party.[33] An intellectual or other disability or language difficulty preventing a party from advocating his or her own case is a factor in favour of exercise of the discretion.[34]
[33] Re GJ Mannix Ltd [1984] 1 NZLR 309 at 311 and 314 per Cooke J and 316 per McMullin J; Damjanovic v Maley (2002) 55 NSWLR 149 at [62] and [70]-[71] per Stein JA (with whom Mason P and Sheller JA agreed); Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32 at [13] per Bleby J (with whom Doyle CJ agreed).
[34] Damjanovic v Maley (2002) 55 NSWLR 149 at [62] and [72]-[73] per Stein JA (with whom Mason P and Sheller JA agreed); Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32 at [14] per Bleby J (with whom Doyle CJ agreed).
In the present case, the appellants in their written application to the Judge did not identify any exceptional circumstances or reasons why the interests of justice required permission to be given for them to be represented by Mr Tonkin. While undoubtedly it would have been preferable if the Judge had heard the application in court (either at a specially convened directions hearing or if time did not permit at the outset of trial), the result would have been the same if there had been a hearing and no miscarriage of justice resulted. No exceptional circumstances justifying the grant of permission were identified on appeal and the material on appeal indicates that no such circumstances existed. The appellants did not suffer from an intellectual or other disability preventing their advocating their own case (on the contrary the transcript of the trial shows that F was competent and articulate in cross-examining the witnesses and making submissions as was the case on appeal). The case was not a simple straightforward one. No error has been demonstrated in the exercise of the discretion by the Judge in refusing the application that the appellants be represented by a lay advocate.
Factual findings by the Judge
The appellants contend that the Judge erred in making four factual findings.
The appellants contend that the Judge erred in giving weight to the evidence of Ms Nadge given that she admitted having a social relationship with M’s family and this rendered her biased.
Ms Nadge gave evidence that she had occasional dealings with B and S after they were placed by the New South Wales Minister temporarily in H’s care and they were in company with M’s mother and grandmother. This was in the course of her responsibilities and no criticism could be made of these dealings. In cross-examination, Ms Nadge said that she had seen the children once, in March 2016, since the final order was made placing the children in H’s custody, and this was not an official visit but just a catch-up.
The evidence given by Ms Nadge largely comprised her explanation of contemporaneous records and reports made by FACS employees and factual observations she made which were not in dispute. The only significant opinion she expressed was that B was telling the truth on 5 March 2015 about being hit notwithstanding that he failed the truth and lies test. It is evident from her contemporaneous records that Ms Nadge formed this opinion before she met H or M’s estranged family. In these circumstances no relevant issue of bias arose in respect of her evidence. In any event, it was a matter for the Judge to assess the credibility and reliability of Ms Nadge’s evidence and the Judge was not obliged to reject her evidence merely because she followed up the children after the final order was made for the custody in February 2016.
The appellants contend that the Judge erred in admitting evidence of the interview with B on 5 March 2015 because B failed the truth and lies test. Taking into account B’s age, the Judge was entitled to accept Ms Nadge’s opinion that nevertheless B was telling the truth about being hit. The appellants also contend that B was asked leading questions but the record of his interview does not support this contention. The appellants contend that the Judge erred in finding that there had been a lack of engagement by the appellants with Families SA because no evidence was adduced by the Minister proving a lack of engagement.
The Judge referred to a lack of engagement by the appellants with Families SA as being in contrast with their having stated a willingness to work with Families SA. In his response lodged in March 2016, F said that the appellants could understand why there would be some concerns but he believed that during a longer period Families SA could work with the appellants and ensure the safety of C. It was evident from the content of his statement that there had been no contact with Families SA since the interviews in early January 2016 and no suggestion was made at trial that there was any further contact after March 2016.
The appellants contend that the Judge erred in finding that one of them was responsible for inflicting the injuries to S because nowhere in the report by Dr Brys or otherwise in the evidence was it proved 100 per cent that it was a non-accidental injury. The opinions expressed by Dr Brys have been summarised above and, on the basis of those opinions, the Judge was fully entitled to make the finding that her Honour did. It was not necessary for the Minister to exclude any possibility that the injuries were accidental and it was sufficient that it was proved on the balance of probabilities that they were caused by one of the appellants (although it is to be noted that Dr Brys expressed her opinion at a much higher level of confidence than 50 per cent). Indeed, in B v B,[35] the High Court held that, on a disputed access determination by the Family Court, it was not necessary that the wife prove on the balance of probabilities sexual interference with the child but was sufficient that it was proved on the balance of probabilities that there was a risk of sexual harm.[36] Given the first limb of the definition of “at risk” in section 6(2)(aa) of the Act, it is likely that the same approach is appropriate on an application for guardianship under the Act when the Minister relies on the ground that there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing. However, given the Judge’s finding on the balance of probabilities that such harm had been caused, it is unnecessary to decide this question.
[35] (1988) 82 ALR 584.
[36] At 585-586 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
These grounds are not established.
Matters taken into account by the Judge
The appellants contend that the Judge did not adequately take into account the best interests of the child which is to be with the biological parents. It may be accepted that prima facie it is in the best interests of a child to remain with his or her biological parents. This is reflected by the approach of the Act under which ordinarily a guardianship order can only be made if the Court is satisfied that the child is at risk (as defined). However, as the Judge observed, once the Judge found that one of the appellants had inflicted serious injuries on S, in the absence of any explanation from the appellants it was inevitable that C would be exposed to an unacceptable risk if he were to be placed in the appellants’ care.
The appellants contend that Families SA did not engage with them in their attempts to demonstrate their suitability as parents. However, the appellants did not adduce evidence of any such attempts.
The appellants contend that the Judge did not give proper consideration to placing C in the guardianship of the Minister for 12 months to give them an opportunity to pursue reunification. The Judge explicitly considered whether a long term order should be made or only an order for 12 months as proposed by the appellants. The Judge observed that C was then seven months old, was in a settled and stable placement and was entering the active attachment stage, which is crucial to his future development. Subsection 38(2a) requires a court to consider the importance of settled and stable living arrangements for the child and provides that, as a general rule, a long term guardianship order is to be preferred to a series of temporary arrangements for the custody or guardianship of the child. Given the seriousness of the findings made by the Judge, it was well open to the Judge to make a long term order.
These grounds are not established.
Conclusion
I would dismiss the appeal.