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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASCFC 71
Decision Date: 26 June 2017

CaseChat Overview and Summary

This case concerned an appeal by the appellants, identified as F and M, against orders made by a judge of the South Australian Youth Court. The dispute centred on the care and guardianship of a child, C, following serious injuries sustained by another child, S, who was M's daughter and F's stepdaughter. The appellants sought to challenge the court's decision regarding C's placement and guardianship.

The primary legal issues before the Full Court of the Supreme Court of South Australia were whether the primary judge erred in their assessment of the evidence concerning the injuries sustained by S, and consequently, whether the judge adequately considered the best interests of C in making orders for his guardianship. Specifically, the appellants contended that the judge did not give proper consideration to the possibility of placing C under the guardianship of the Minister for a period to allow for reunification with his biological parents.

The Full Court, comprising Vanstone, Peek, and Blue JJ, dismissed the appeal. The court found that the primary judge had properly accepted the expert evidence of Dr Brys, Ms Nadge, and Ms Moore, which concluded that S's severe injuries were extremely unlikely to have been self-inflicted and were highly suggestive of physical assault. The judge also accepted evidence that the appellants exhibited dismissive and minimising attitudes towards the issues surrounding S's injuries and their own capacity to care for children. Given the significant risk of serious harm to C, the judge concluded that the appellants were unable to adequately care for and protect him. The court affirmed the judge's finding that, due to the appellants' entrenched issues and lack of engagement with relevant services, placing C under the guardianship of the Minister until he attained the age of 18 years was in his best interests.

Orders

Orders of the court

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Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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