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…
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- Case
- [2017] SASCFC 71
- Decision Date
CaseChat Overview and Summary
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.
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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