H, A v Minister for Families & Communities - [2005] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal)
H, A v MINISTER FOR FAMILIES & COMMUNITIES & H, J v MINISTER FOR FAMILIES AND COMMUNITIES
Judgment of The Honourable Justice White
6 September 2005
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - POWERS AND DUTIES OF MINISTER AND DEPARTMENT
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CUSTODY - APPEALS
Appeals pursuant to s 22 of the Youth Court Act 1993 against order made by Magistrate placing child under guardianship of Minister for Families and Communities - order placed child under guardianship until child attains 18 years of age - application by Minister pursuant to s 37(2) of Children's Protection Act 1993 ("CPA") - grounds of application were that child was at risk having been abused and neglected and guardians were unable to exercise adequate supervision and conrol over the child - whether Magistrate erred in making order of guardianship - whether Magistrate erred in making length of term of guardianship until child attains 18 years of age - discussion of the object of the CPA and the principles upon which an application by the Minister is to be determined - whether appeal from Youth Court an appeal in strict sense or by way of rehearing - held that an appeal from the Youth Court is by way of rehearing and that further evidence can be received - discussion of conduct of proceedings in Youth Court - where there was an adjournment of proceedings - where a Magistrate is seized of a matter - held that no error in order made by Magistrate placing child under guardianship of Minister until the age of 18 years - each appeal dismissed.
Children's Protection and Young Offenders Act 1979 s 76; Children's Protection Act 1993 s 4, s 6, s 11, s 16, s 17, s 19, s 21, s 27, s 28, s 37, s 38, s 39, s 40, s 45; Youth Court Act 1993 s 16, s 22; Magistrates Court Act 1991 s 42; Supreme Court Rules 1987 r 97.17; Mental Health Act 1993 ., referred to.
Hillier v Minister for Community Welfare (1987) 45 SASR 467; VM v Police [2002] SASC 78, (2002) 218 LSJS 399; Police v Dorizzi (2002) 54 SASR 416; P v Police (Unreported, Supreme Court of South Australia, Full Court, Cox, Perry and Lander JJ, 19 July 1996, Judgment No S5677); Wentworth v Rogers (1986) 6 NSWLR 642; Young v Allan [1959] VR 226; Sealy v Nichol (1977) 17 ALR 104; R v Schwarten (1965) Qd R 276, applied.
C v Minister for Community Welfare (1989) 52 SASR 304; Wigg v Architects' Board (1984) 36 SASR 111; Police v Cadd (1997) 69 SASR 150; D v M [1982] 3 WLR 891; B & B v Minister for Family and Community Services (1992) 166 LSJS 414, distinguished.
Minister for Community Welfare v Hillier (1987) 47 SASR 553; A v Minister for Community Welfare and Crowe (1988) 12 Family Law Reports 117, discussed.
House v The King (1936) 55 CLR 499; Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513, considered.

H, A v MINISTER FOR FAMILIES & COMMUNITIES & H, J v MINISTER FOR FAMILIES AND COMMUNITIES
[2005] SASC 339
Youth Court Appeal

WHITE J: On 12 May 2005, a Magistrate in the Youth Court made an order, on the application of the Minister for Families and Communities pursuant to s 37(2) of the Children’s Protection Act 1993 (“CPA”), that a child be placed under the guardianship of the Minister until the child attains the age of 18 years. In addition, the Magistrate made a number of ancillary orders including orders relating to access to, and contact with, the child.
In these reasons, I will call the child “B”. I will refer to the father of the child as “JH” and to the mother as “AH”. Each of JH and AH appeals against the order placing B under the guardianship of the Minister. Their complaint is directed to the order for guardianship. It was not submitted that in the event that this Court dismissed the appeal against the guardianship order that it should interfere with any of the ancillary orders made by the Magistrate.
B was born in March 1995 and was, therefore, aged 10 years and two months at the date of the Magistrate’s order. She is the daughter of JH and AH.
The Statutory Provisions
Section 37(1) of the CPA provides:
(1)     If the Minister is of the opinion —
(a)     that a child is at risk; and
(b)     that an order under this Division should be made in respect of the child to secure his or her care and protection,
the Minister may apply to the Youth Court for an order under this Division.
Thus, under s 37 of the CPA if the Minister is of the opinion that a child is “at risk” and that an order should be made under Division 2 of Part 5 of the CPA to secure the “care and protection” of the child, the Minister is empowered to make application to the Youth Court for such an order.
Section 38 of the CPA provides as follows (relevantly):
(1) If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise any one or more of the following powers:
(a)     the Court may require any guardian of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive Officer or some other specified person or authority for the duration of the undertaking;
(b)     the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i)    a guardian of the child;
(ii)    some other member of the child's family;
(iii)the chief executive officer of a licensed children's residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(iv)     the Minister;
(v)any other person that the Court thinks appropriate in the circumstances of the case;
(c)     the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d)     the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(e)     the Court may direct a party to the application to do one or more of the following:
(i)    to cease or refrain from residing in the same premises as the child;
(ii)to refrain from coming within a specified distance of the child's residence;
(iii)to refrain from having any contact with the child except in the presence of some other person;
(iv)     to refrain from having any contact at all with the child;
(f)    the Court may make consequential or ancillary orders —
(i)    providing for access to the child; or
(ii)providing for the way in which a person who has custody or guardianship of the child under an order of the Court is to deal with matters relating to the care, protection, health, welfare or education of the child; or
(iii)     dealing with any other matter.
(2) In relation to orders under subsection (1)(d) (placing a child under guardianship until 18), the Court —
(a)     should not, as a general rule, consider making such an order in relation to a child unless satisfied that no other order would in all the circumstances of the case be appropriate; but
(b)     should, in the interests of securing a settled and permanent living arrangement for the child, consider making such an order if some other order under this section has been, or will have been, in force in relation to the child for a period of two years (or a number of such orders have, or will have, between them been in force for that period).
(3)…
(4)…
By virtue of s 38, if the Court finds that the grounds of the application made pursuant to s 37 are made out it may exercise any one or more of a number of powers. In particular, it may place the child, until the child attains 18 years of age, under the guardianship of the Minister (s 38(1)(d)) and in the event that it makes that order, may make consequential or ancillary orders (s 38(1)(f)). Section 38(2)(a) indicates that as a general rule an order placing a child under the guardianship of the Minister until age 18 ought to be regarded as an order of last resort. As a general rule, the Court should not consider making such an order unless satisfied that no other order would in all the circumstances of the case be appropriate.
The Scheme of the CPA
The Minister’s application had to be determined in accordance with principles established by the CPA. The expressed object of the CPA is to provide for the care and protection of children so as to maximise each child’s chance of growing up in a safe and stable environment and to reach his or her full potential.[1] The Act proceeds on the basic principle that the primary responsibility for a child’s care and protection lies with the child’s family and places a high priority on supporting and assisting families to carry out their responsibilities.[2]
[1] CPA, s 3(1).
[2] CPA, s 3(2).
Section 4 establishes principles to which the Magistrate was bound to have regard in determining the application. Section 4 provides:
4(1)    In any exercise of powers under this Act in relation to a child —
(a)     the safety of the child is to be the paramount consideration; and
(b)     the powers must always be exercised in the best interests of the child.
(2)     Serious consideration must, however, be given to the desirability of —
(a)     keeping the child within his or her family; and
(b)     preserving and strengthening family relationships between the child, the child's parents and other members of the child's family, whether or not the child is to reside within his or her family; and
(c)     not withdrawing the child unnecessarily from the child's familiar environment or neighbourhood; and
(d)     not interrupting unnecessarily the child's education or employment; and
(e)     preserving and enhancing the child's sense of racial, ethnic, religious or cultural identity, and making decisions and orders that are consistent with racial or ethnic traditions or religious or cultural values.
(3) If the child is able to form and express his or her own views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child's age and maturity.
(4) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
The scheme established by the Act is directed to implementing those objects and principles. The CPA requires a person who, in the course of their work, forms a suspicion, on reasonable grounds, that a child has been or is being abused or neglected to notify the Department for Families and Communities (“DFC”) (s 11). Police and departmental officers are given power to remove children from their guardians, including their parents, and from dangerous situations (s 16 and s 17). Where the Chief Executive Officer of DFC suspects on reasonable grounds that a child is at risk, he or she may cause an investigation into the circumstances of the child to be carried out and, in that regard, is vested with statutory powers to facilitate the investigation (s 19). Where necessary, the Chief Executive Officer can obtain an order from the Youth Court authorising the examination and assessment of a child suspected of being at risk and may require persons to facilitate that examination and assessment, including by granting custody of the child to the Minister (s 21). Where the Minister forms the opinion that a child is at risk and that arrangements should be made to secure the child’s care and protection, the Minister should cause a family care meeting to be convened in respect of that child (s 27). The purpose of such meetings is to provide a proper opportunity for the child’s family, in conjunction with a “Care and Protection Co-ordinator”, to make and review informed decisions as to the arrangements for best securing the care and protection of the child (s 28). It is obviously intended that these meetings should serve an important purpose as, other than in specified circumstances, the Minister may not make an application for guardianship of a child until a family case meeting in respect of that child has been held. As already noted, if the Minister is of the opinion that a child is at risk and that a court order for the protection of the child should be made, the Minister may make application to the Youth Court (s 37 and s 38). The Court may make orders requiring the guardians of a child (which expression includes the parents of the child) or the child to engage in, or refrain from, specified conduct, or orders for the custody of the child, and orders for the guardianship of the child. It is evident that an order for guardianship is ordinarily the most drastic order that the Youth Court may make, and that an order for guardianship to the age of 18 years the most drastic form of guardianship order. As was pointed out by Cox J in Hillier v Minister for Community Welfare, the removal of children from the guardianship or control of their parents is something to be done only after the most careful enquiry.[3]
[3] (1987) 45 SASR 467 at 470.
In hearing proceedings under the CPA, the Youth Court is not bound by the rules of evidence and may inform itself as it thinks fit.[4] The Youth Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[5] Facts to be proved in proceedings under the CPA are sufficiently proved if established on the balance of probabilities.[6]
[4] CPA, s 45(1)(a).
[5] CPA, s 45(1)(b).
[6] CPA, s 45(2).
Grounds of the Minister’s Application
On 17 November 2004, the Youth Court made an order pursuant to s 21(1) of the CPA authorising an examination and assessment of B. That order was made on an application by the Chief Executive of DFC on the grounds that there was evidence warranting a reasonable suspicion that B was at risk.[7] In addition an order was made pursuant to s 21(1)(c) that the Minister have the custody of B for a period of 28 days. That order was extended for seven days on 13 December 2004 and, as I understand it, further extended on 16 December 2004 and 10 January 2005.
[7] CPA, s 20.
The application for an order for guardianship, pursuant to s 37(2), was filed on 16 December 2004. The grounds of the Minister’s application were:
1.The child is at risk in that the child has been abused and neglected (s 6(2)(a) of the Act);
2.The child is at risk in that the guardians are unable to exercise adequate supervision and control over the child (s 6(2)(c)(i) of the Act).
As can be seen, the Minister sought to bring the application within the terms of s 6(2) of the CPA which provides:
6(2)    For the purposes of this Act, a child is at risk if —
(a)     the child has been, or is being, abused or neglected; or
(b)     a person with whom the child resides (whether a guardian of the child or not) —
(i)has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or
(ii)has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or
(c)     the guardians of the child —
(i)are unable to maintain the child, or are unable to exercise adequate supervision and control over the child; or
(ii)are unwilling to maintain the child, or are unwilling to exercise adequate supervision and control over the child; or
(iii)are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or
(d)     the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(e)     the child is under 15 years of age and is of no fixed address.
The expression “abuse or neglect” is defined in s 6(1) of the CPA to mean:
"abuse or neglect", in relation to a child, means —
(a)     sexual abuse of the child; or
(b)     physical or emotional abuse of the child, or neglect of the child, to the extent that —
(i)the child has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or
(ii)    the child's physical or psychological development is in jeopardy,
and "abused" or "neglected" has a corresponding meaning; …
The Proceedings Before the Magistrate
The Magistrate heard evidence from several witnesses, including a Ms Saunders, a senior social worker with DFC, a Ms Mahoney, a clinical psychologist working with Child Protection Services, a Mr Croser, a legal practitioner who has had dealings with and who had taken instructions from B, from JH and AH themselves and various others who had had contact with them in a range of circumstances.
The Magistrate accepted the evidence of each of the witnesses called by the Minister. It is also evident that he accepted the evidence of Mr Croser, who was called by counsel representing B. The evidence of Ms Mahoney, the clinical psychologist, in particular, was important. She had interviewed B on three occasions, the parents on two occasions and B’s paternal grandparents (who had the care of B) on one occasion. In addition, it is apparent that Ms Mahoney was provided with some written material, not all of which was put in evidence before the Magistrate. Ms Mahoney prepared an extensive report and gave oral evidence elaborating on the content of that report. Ms Mahoney concluded that B had experienced “significant psychological maltreatment resulting, in particular, from ‘an abusive parenting style’”. Although referring to some specific incidents of abuse, Ms Mahoney emphasised more that the environment in which B lived with her parents was one characterised by violence or threats of violence, a denial of emotional responsiveness, neglect of her mental health, medical and educational needs and deprivation of necessities.
The parents were not legally represented in the proceedings before the Magistrate. Nor were they legally represented on the hearing of the appeal.
It is apparent from the transcript of the hearing, that during that hearing, JH was frequently loud and abusive, often aggressive and occasionally insulting. Whilst some resentment from parents resisting an application for an order which, if granted, will have the effect of their child being removed from their care may not be unexpected, it is plain, in my opinion, that the behaviour of JH went well beyond that. His behaviour in the hearing in the Youth Court, and to some extent in the hearing in this Court, tended to confirm the evidence concerning his behaviour out of court which led to the Minister’s application.
The Decision of the Magistrate
The Magistrate considered all the evidence, including the evidence of JH and AH, indicated unacceptable parental behaviour on their part which had created an atmosphere of abuse and neglect of B placing her at extreme risk of psychological and physical injury. The Magistrate considered it likely that psychological injury had already occurred.

Thus the Magistrate was satisfied that the first ground of the Minister’s application was made out. The Magistrate made no specific finding as to whether the second ground of the application had been made out.
The Magistrate also found that JH and AH had threatened to kill or injure B and that there was a reasonable likelihood that that threat would be carried out. Thus, the Magistrate found that B was “at risk” within the meaning of s 6(2)(b)(i) of the CPA. This was not a ground upon which the Minister had relied in his application. In many circumstances, this would give rise to concerns about a possible denial of procedural fairness if all parties were not on notice that such a finding might be made. However, I do not consider that those concerns would, by themselves, warrant an interference with the Magistrate’s decision in the present case. As will be seen, evidence of threatening behaviour by JH in particular was a feature of the evidence led by the Minister at the trial and each of JH and AH were on notice about it. Each had an opportunity to deal with the implications arising from that behaviour. It is not likely that the conduct of the hearing would have been any different had this ground been included in the written application filed by the Minister.
Although in the application filed on 16 December 2004 the Minister had sought an order for guardianship for a period of 12 months only, the issue of an order being made to operate until B attained the age of 18 years was raised in the evidence of two witnesses and in the submissions before the Magistrate. No issue of procedural fairness arises in that respect. After referring to s 38(2) the Magistrate considered that it was appropriate to make an order in those terms.
The Grounds of Appeal
Each of the Notices of Appeal was prepared without legal assistance. Each did no more than to assert, in effect, that the decision of the Magistrate was wrong, but without any particularisation. I understood the appellants to be complaining of the order of guardianship, and further of the order that the guardianship have effect until B reaches 18 years of age.
The appellant’s submissions tended to be in the nature of denials of the matters found by the Magistrate together with some explanations of their conduct. The appellants did not seek to show that the Magistrate’s findings were not open on the evidence before him. Nor did they seek to show that the Magistrate had made any error of principle or of law.
I was informed at the commencement of the hearing of the appeal that the appellants did not have a copy of the transcription of the Magistrate’s ex tempore decision given on 12 May 2005. Nor did they have a transcript of the evidence heard by the Magistrate on 9-12 May 2005 inclusive. Each of the appellants indicated that they did not wish the hearing of the appeal to be adjourned in order to give them an opportunity to obtain and consider either the reasons or the evidence transcript. (At the time of the hearing the appeal, the transcript of the evidence heard on 9 and 10 May 2005 only was available to the Court and to the respondents). A copy of the Magistrate’s reasons was provided to each of the appellants during the course of the hearing of the appeal and, after a short adjournment, JH made some submissions directed to the Magistrate’s findings.
Appeal to the Supreme Court
An appeal lies to the Supreme Court from the decision of the Youth Court. Section 22 of the Youth Court Act 1993 provides:
(1)A party to proceedings in the Court may appeal against any judgment given in the proceedings (including an acquittal on a charge of a summary or indictable offence) but an appeal does not lie against a judgment in a preliminary examination.
(2)     The appeal lies—
(a)in the case of an interlocutory judgment given by a Magistrate, two justices or a special justice—to the Senior Judge;
(b)in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)in the case of any other judgment given by a Magistrate, two justices or a special justice—to the Supreme Court constituted of a single Judge;
(d)in the case of any other judgment given by a Judge—to the Full Court of the Supreme Court.
(3)     On the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)    it may remit the matter for hearing or further hearing;
(c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
Ms Olsson, who appeared for the Minister, submitted that the appeal contemplated by s 22 is an appeal in the strict sense, ie, this Court is to determine whether the decision of the Magistrate was correct at the time it was given on the materials which were before him and applying the law in force at that time.[8] An appeal in the strict sense is not an appeal by way of rehearing and on such an appeal, this Court may not receive further evidence. Mr Hemsley, who appeared for B, submitted that the appeal was by way of rehearing and that further evidence could be received.
[8]See, for example, Wigg v Architects’ Board (1984) 36 SASR 111 at 112-13, per Cox J; Police v Cadd (1997) 69 SASR 150 at 189, per Lander J.
Ms Olsson relied on the decision in C v Minister for Community Welfare in which O’Loughlin J held that an appeal pursuant to s 76 of the former Children’s Protection and Young Offenders Act 1979 against a guardianship order made by the Children’s Court was an appeal in the strict sense.[9] Section 76 provided:
(1)An appeal shall lie to the Supreme Court from any final order, declaration or adjudication made by the Children’s Court –
(a)under Part III of this Act; or
(b)under any other Act.
(2)An appeal under this section shall be heard by a single judge of the Supreme Court.
[9] (1989) 52 SASR 304 at 321-2.
O’Loughlin J regarded himself bound by the decision of the Full Court in Minister for Community Welfare v Hillier[10] to hold that the appeal granted by s 76 was an appeal in the strict sense. In Hillier v Minister for Community Welfare,[11] on a preliminary question of law, Cox J held that the appeal under s 76 was an appeal by way of rehearing, ie, the matter would be reheard on the evidence taken in the court below with a power in the Supreme Court to receive further evidence in a proper case.[12] Cox J rejected a submission that the appeal was to be by way of hearing de novo, ie, the matter was to be heard afresh.[13] The appeal in Hillier was later heard and determined by Bollen J, who allowed it. The Minister then appealed to the Full Court.[14] It is important to note that there was no appeal from the decision of Cox J and the Full Court was not asked on the appeal to it to overturn his decision. Instead, it was submitted to the Full Court that because the subject matter of the appeal was the care and protection of the child whose interests were paramount, the Full Court ought not feel constrained by the well-established principles relating to appellate interference with an exercise at first instance of a judicial discretion. It was submitted to the Full Court that if it was satisfied that the decision of the Children’s Court was wrong, it ought to say so and act accordingly. Reliance was placed in this respect on the decision of the Court of Appeal in England in D v M[15] in which Ormrod LJ, in relation to a similar submission, said:
… In cases concerning the custody of children there is a statutory right of appeal without leave, and the appellate courts have a statutory duty to rehear such appeals. There is no statutory justification for restricting or limiting the powers of the appellate courts in such cases, although practical considerations will lead the appellate court to adopt a cautious approach.[16]
Justice von Doussa, with whom each of White and Legoe JJ agreed in this respect, rejected the submission, holding that D v M did not represent the law in Australia, and saying:
The Court of Appeal rejected the approach that an appellate court should not interfere with the exercise of the discretion of the court at first instance, which had had the advantage of seeing and hearing the parties concerned, unless the decision of the court below was one which no reasonable court could have reached, or unless it could be shown that the court below had erred in law, or had taken into account any matter which should not have been taken into account, or had failed to take into account any matter which ought to have been taken into account. The approach rejected accords closely with the established practice in Australia.[17]
Justice von Doussa held that the Court was bound to follow the decisions of the High Court in House v The King[18]; Lovell v Lovell[19]; Gronow v Gronow[20]. In my opinion, von Doussa J was not intending to indicate that the appeal was not by way of rehearing nor that there was no power in the Full Court to receive further evidence. This is also evident from his consideration of the application by the respondents in Hillier to lead further evidence. That application was determined on its merits and not by reason of an absence of power to receive such evidence. O’Loughlin J has reasoned from the rejection of von Doussa J of the approach adopted by the Court of Appeal in D v M, as to appellate interference with the exercise of a judicial discretion at first instance in cases of this kind, to the conclusion that his Honour was also rejecting the conclusion of Cox J, that the appeal was by way of rehearing. In my respectful opinion, this reasoning was incorrect and ought not to be followed. It is not readily to be supposed that the Full Court would have overturned the decision of Cox J when it was not invited to do so and further, without expressly saying so. Rather, in my opinion, the decision of the Full Court in Hillier assumed the correctness of the earlier decision of Cox J.
[10] (1987) 47 SASR 553.
[11] (1987) 45 SASR 467.
[12] Ibid at 469-70.
[13] Ibid at 471.
[14] Minister for Community Welfare v Hillier (1987) 47 SASR 553.
[15] [1982] 3 WLR 891.
[16] Ibid at 894.
[17] (1987) 47 SASR 553 at 569, per von Doussa J.
[18] (1936) 55 CLR 499.
[19] (1950) 81 CLR 513.
[20] (1979) 144 CLR 513.
I acknowledge that the decision of O’Loughlin J in C v the Minister for Community Welfare was followed by Olsson J in B & B v Minister of Family and Community Services.[21] On the other hand, in V M v Police, Williams J considered that an appeal pursuant to s 22 of the Youth Court Act was similar to an appeal under s 42 of the Magistrates Court Act 1991[22], ie, an appeal by way of rehearing.[23] In P v Police, Cox J, with whom Perry and Lander JJ agreed, expressed tentatively the conclusion that the appeal from the Youth Court should be heard and determined substantially in the manner appropriate to an appeal under the Magistrates Court Act.[24] Cox J said that he expressed his view tentatively because the point had not been argued before the Full Court. It is true that the right of appeal vested by s 42 of the Magistrates Court Act 1991 is expressly stated to be in accordance with the Rules of Court. That may, in respect of such appeals, attract the operation of r 97.17 (“an appeal under r 97 is to be by way of rehearing”). Section 22 of the Youth Court Act has no corresponding reference to the Rules of the Supreme Court. However, as in my respectful opinion, the decisions in C v Minister and B & B v The Minister are in this respect incorrect, and given that there are two Full Court decisions and one decision of a single judge indicating that an appeal from the Youth Court is by way of rehearing, I propose to proceed on that basis.
[21] (1992) 166 LSJS 414.
[22] [2002] SASC 78 at [6], (2002) 218 LSJS 399 at 400.
[23] Police v Dorizzi (2002) 54 SASR 416 at 421 [27], per Duggan J.
[24](Unreported, Supreme Court of South Australia, Full Court, Cox, Perry and Lander JJ, 19 July 1996, Judgment No S5677).
That does not have a significant practical effect in the circumstances of this appeal. On the hearing of the appeal I was asked to receive two further pieces of evidence. The first, a handmade paper-folding device, described by JH as a “flip flop”, was received by consent. The second was a videotape which the appellants did not have in Court and were not in a position to tender. From the description given by JH it did not appear to have any relevance to the issues on the appeal and I did not receive it into evidence.
The Behaviour of the Parents
B was the first child born to JH and AH. Another child, A, was born in January 2001 but died at 10 days of age. It is evident that the death of A has been a source of considerable distress to both parents. AH has also had children in a previous relationship.
In the absence of specific grounds of appeal, I propose to consider the principal aspects of the behaviour of JH and AH upon which the Magistrate relied.
Although Child, Youth & Family Services (“CYFS”), an agency of DFC, had, prior to October 2004, received a number of notifications concerning B, it had not taken action in respect of any of them. It was an incident which occurred on 17 October 2004 which led to their intervention. On that day, police were called to the home where JH, AH and B were living. AH had called the police, making allegations that JH was acting violently towards her. A police officer who attended described the conduct of JH as abusive and aggressive. The police officer noted AH to be distressed and with superficial cuts to her lower arms. It was suggested that those wounds had been inflicted by AH herself, in a possible attempt at suicide. (This was denied by both JH and AH in the proceeding before the Magistrate). Possessions of AH were strewn in the backyard, apparently having been thrown from the back door. An urn, containing the ashes of the deceased child A, had been broken. The police officer described B as being “very filthy … wearing very filthy clothing … very unkempt” and wearing clothes which were too small for her. It was said that there was no food in the home. The police were told that the house had no electricity and noted that it was in darkness. Following this incident, a notification was made to CYFS. That led to an investigation which resulted in the application to the Youth Court by the Minister on 16 December 2004.
Mental State of JH
JH was detained under the Mental Health Act1993 for the period 12 November 2004 to 17 November 2004. During that time, a psychiatric assessment was carried out at the Glenside Campus of the Royal Adelaide Hospital. JH was noted to be “extremely angry, agitated and hostile”. He admitted to a daily intake of 1 gram of cannabis. The assessing psychiatrist considered a diagnosis of personality dysfunction with litigious and hypomanic traits as most likely. There was no evidence before the Magistrate as to whether any aspects of the behaviour of JH should be attributed to such a diagnosis.
Health of AH
AH has a long history of epilepsy. Her condition is such that it can be controlled appropriately with anti-convulsant therapy. It is apparent, however, that AH also has a long history of non-compliance with prescribed courses of anti-convulsant therapy. When AH does take the medication, it often produces a drowsiness and listlessness in her. Again, there was no evidence before the Magistrate as to which, if any, aspects of the behaviour of AH could be attributed to that medical condition. The Magistrate found that AH was “totally dominated” by JH because of his “obsessive, loud and outrageous bullying”.
Threats of Terrorism
The Magistrate found that JH had made “consistent and continual threats to kill, bomb or harm institutions and individuals including [B’s] class at school” and that he had made threats against “police, hospitals, doctors, lawyers, ministers of the Crown, courts, public servants and the State”. Further, he had indicated a belief in the ideals of Al Qaeda.
There was ample evidence to support these findings. JH admitted that he had made statements expressing the hope that Al Qaeda would wipe out Australia, or at least its institutions. He agreed that he had left an Al Qaeda manual at the reception desk of the Department for Correctional Services and that he had told Ms Mahoney that if B was not returned to him, the streets of Adelaide would flow with blood. He agreed that he had threatened to blow up the home of the Minister of Education. Although he denied ever saying to B that he wished to use her as a suicide bomber and/or to enrol her in Al Qaeda, there was evidence indicating that he had. AH acknowledged that JH had said that B would be a good suicide bomber, although she did not think that it was intended to be taken seriously. Mr Croser reported B having told him that JH had said that he wished to bomb her school, that she would be a good suicide bomber, that he would make a vest for her to wear for that purpose, and that she was aware that he had tried making a Molotov cocktail. B told Mr Croser that she had been told many times by JH that she would be a good suicide bomber. It is apparent that B found these statements, in the context in which they were made, quite disturbing. Ms Saunders referred to JH having repeatedly said that he could not wait until Al Qaeda came and wiped out Australia. In his interview with Ms Mahoney, JH expressed support for Al Qaeda and for Osama Bin Ladin. In his submissions on the appeal, the appellant admitted to hatred of the police and to hoping that Al Qaeda would kill them.
On the appeal, JH submitted that statements which he had made describing B as a suicide bomber or as cannon fodder were in the nature of light-hearted reflections, not intended to be taken seriously.
At one level, the statements of JH might be understood as being born of his resentment of, and resistance to, intervention by authority figures. That is very apparent in the intervention by the CYFS following the incident on 17 October 2004. However, his behaviour in this respect goes beyond being an expression of his resentment to authority. It is plain that the references to Al Qaeda, suicide bombers and cannon fodder have been made in B’s presence and, indeed, directed on many occasions to her. Whether made seriously or otherwise, the Magistrate was right, in my opinion, in being concerned about the effect which these statements would have on the impressionable mind of a 10 year old child.
Domestic Violence Involving AH in the Presence of B
The Magistrate referred to assaults on AH by JH and to the abuse of each other which had occurred in the presence of B. JH denied, in his evidence, having any problem with aggression. He described himself as a person who was “totally well controlled”. The evidence before the Magistrate contradicted that self assessment. JH admitted to having, on occasion, assaulted AH. In her evidence AH admitted to having struck JH and to having been struck by him. She also referred to incidents in which she had been physically restrained by JH. Mr Croser reported B telling him that she had seen her parents fighting “a lot” with JH hitting and kicking AH.
Use of Cannabis
Each of JH and AH are regular users of cannabis, AH more so than JH. It is also apparent that they are accustomed to smoking cannabis in the presence of B. Many of the fights between JH and AH concerned the consumption of cannabis. Ms Mahoney considered that B’s exposure to drug use behaviour was detrimental to her development. JH and AH told Ms Mahoney that they could not see any problem for B in their consumption of cannabis, even in the presence of B.
Abusive/Aggressive Behaviour

I have already referred to aspects of JH’s abusive and aggressive behaviour. Reference was made to that aspect of his behaviour in the evidence of all witnesses called by the Minister and by counsel for B. As already noted, JH’s aggression was evident in his behaviour before the Magistrate and, to a certain extent, on the hearing of the appeal. The Magistrate had to intervene frequently to have JH modify both his aggression and his language. JH acknowledged that his language in front of B could be profane, loud and rude.
On two departmental visits AH too was abusive and aggressive, to the point of having to be physically restrained. On another occasion, AH was observed to have “cigarette burns” to her cheeks. It is not clear whether these were self inflicted.
B’s Health: Eczema
B has suffered in the past from significant eczema. It can be controlled with the application of an appropriate cream. The Magistrate found that JH had refused properly to supervise his daughter’s medical treatment on the stated basis that she was able, at the age of 10, to care for herself. Although JH’s attitude may have been well intentioned, it was evident from the extent of the eczema that B required assistance from her family in controlling the eczema.
Domestic Circumstances
There was evidence that B’s diet was inadequate. In later 2004, B lived in a home with her parents which was rented. There was no electrical supply to the home, apparently because of lack of payment of the supplier’s accounts. It is evident from B’s statements to Mr Croser that she found this disconcerting and disruptive. At the time of the hearing in May 2005, JH and AH did not have secure accommodation. They were living in a house on a farm property but were already $1600 in arrears in rent. They acknowledged that they did not have the means of making good the arrears. It is unclear how long they will be able to go on living there. All of these factors indicated an unstable domestic circumstance for B.
Lack of Insight
One feature which is striking from the transcript of the proceedings in the Youth Court, and from the evidence in particular of Ms Saunders and Ms Mahoney, is the lack of insight which each of JH and AH have as to the effect of their behaviour on B’s development. There seems almost a total lack of appreciation that their behaviour may be detrimental or that it is inappropriate behaviour. There was certainly no indication of any willingness to modify their behaviour because of an understanding that such a modification was necessary for B’s well being.
General
On the basis of the evidence of Ms Saunders and Ms Mahoney, and on the basis of the evidence to which I have referred above, the finding of the Magistrate that B had suffered physical and emotional abuse to the extent that her physical or psychological development was in jeopardy was appropriate. I am satisfied that there was no error by the Magistrate in reaching that conclusion.
I am also satisfied that JH has threatened violence to B. I refer in particular to his threat to blow up her school. There may be doubts as to whether there is “a reasonable likelihood” that the threat would be carried out. However, it is not necessary for me to resolve that on appeal as the finding relating to the neglect of B warranted the guardianship order made by the Magistrate.
In my opinion, the order that B should be placed under the guardianship of the Minister has not been shown to be wrong. I dismiss that aspect of the appeal.
The Order to Age 18
The Magistrate appreciated that an order placing B, until she reached the age of 18 years, in the guardianship of the Minister should not be made unless he was satisfied that no other order would be appropriate. The Magistrate considered that the Court had “no other choice” other than to make an order which was to have effect until B reached 18 years of age. A number of considerations led the Magistrate to that conclusion. The first was the nature of the behaviour of JH and AH, to which I have already referred. The second was that it was evident that neither JH nor AH had any insight into the effect that their behaviour was having on B. Neither had given any indication of a willingness to review their own behaviour and to modify it. Each had rejected offers from the Department of assistance in developing appropriate parental behaviour. The fourth consideration was the need, referred to by Ms Mahoney, for B to have a stable environment. This of course would be common in all cases. However, in the circumstances of the present case, it was desirable that the Court avoid creating circumstances in which an expectation might arise, on the parents’ part, that B would be returning to them at the expiration of 12 months. If such an expectation did arise, it was likely to be communicated to B. In Ms Mahoney’s opinion, this would be productive of anxiety in B. The final consideration was the ability for the parents to apply for revocation or variation of the guardianship order.[25]
[25] CPA, s 40.
It is true that there were some countervailing considerations. Ms Adams was a social worker who had worked as a Community Corrections Officer. As such, she had supervised the compliance of JH under a bond imposed on him. She had had opportunities to observe his behaviour. She too gave evidence of abusive and aggressive behaviour on his part. She expressed the opinion that JH would need to modify his attitude significantly in order to be able to engage appropriately in counselling directed to modifying his parental behaviour. She did, however, think that he did have the capacity to change.
However, I do not consider that that evidence was overlooked by the Magistrate. In my opinion, the Magistrate did direct his mind to appropriate matters, and in particular that an order placing B, until the age of 18 years, in the guardianship of the Minister should be regarded as exceptional. In the particular circumstances of this case, I consider that the decision of the Magistrate to make such an order in the case of B has not been shown to be in error.
Miscellaneous Matters
There are a number of matters arising in connection with the conduct of the proceedings in the Youth Court which warrant separate comment.
Adjournment of the Proceedings: s 39
The subject matter of an application pursuant to s 37 of the CPA makes it highly desirable that the proceedings be heard and determined expeditiously. That desirability is made explicit in s 4(4):
All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
The principle is further confirmed by s 39(a) of the CPA which constrains the Youth Court’s general power of adjournment. It provides:
The Court –
(a)cannot exercise its general power of adjournment in relation to an application under this Division so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks; …
Each of s37, s 38 and s 39 are found in Division 2 of Part 5 of the CPA.
In short, it is a requirement of the CPA that proceedings should be heard and determined expeditiously and that no more than 10 weeks should elapse between the lodgement of the application and the commencement of the hearing.
In the present case, the application of the Minister was lodged on 16 December 2004 and the hearing before the Magistrate commenced on 9 May 2005, ie, more than 20 weeks later. Counsel for the Minister informed me that it was the practice of the Youth Court to take an opening from the Minister within the period of 10 weeks and then to adjourn the “substantive trial” to a later date. That practice had been followed in this case. There had been a hearing on 10 January 2005, ie, within the 10-week period at which nothing more had occurred than the provision to the Court of a written opening. The matter was then adjourned for trial on 9 May 2005. It was suggested that this was the way in which the Youth Court “coped” while still complying with the restraint imposed by s 39(a).
The precise meaning of s 39(a) is unclear. The “general power of adjournment” to which it refers is probably a reference to the power of adjournment vested in the Youth Court by s 16 of the Youth Court Act 1993. It may also be a reference to the implied power to adjourn proceedings which is vested in a court.[26] This would mean that any “specific” power of adjournment would be unaffected by s 39(a). However, there does not seem to be any specific power of adjournment vested in the Youth Court in relation to proceedings brought pursuant to s 37 of the CPA. I note that the Youth Court is vested specifically with power to adjourn applications brought pursuant to s 21 of the CPA for the examination and assessment of a child.[27] But there is no equivalent in Part 5 of the CPA. It is not clear whether the Youth Court now has a discretion to adjourn proceedings in the circumstances considered by the Full Court of this State in A v Minister of Community Welfare and Crowe[28] (ie, where a parent was facing criminal charges in respect of the same conduct on which the Minister relied in bringing the application for guardianship). In addition, it is possible that the phrase “commencement of the hearing” in s 39(a) is capable of more than one meaning. It may refer to the precise moment in time a hearing commences (whether by the taking of an opening or by the hearing of evidence) or it may refer to the occasion when the Court commences its consideration of the application.
[26] R v Kelly; ex parte Harvey (1985) 38 SASR 93.
[27] CPA, s 23.
[28] (1988) 12 Family Law Reports 117.
These matters were not the subject of any detailed submissions before me. It is not appropriate, therefore, for me to express any concluded views about the meaning of s 39(a). However, I do have concerns as to whether what occurred in this case on 10 January 2005 was the “commencement of the hearing” within the meaning of that expression in s 39(a). A short formal hearing followed by a lengthy adjournment before any evidence is taken does not presently seem to me to be the kind of “commencement of hearing” to which s 39(a) refers. Apart from that there seems to me to be an issue about the appropriateness of the Youth Court, as a matter of practice, holding a hearing for the purpose of receiving only a formal opening if that is done with no intention of proceeding within the 10‑week period with the trial or for the purposes of circumventing the constraint imposed by s 39(a). If, as counsel submits, this is a practice of the Youth Court, it would be appropriate, in my respectful opinion, for the Youth Court to review it.
There is a further issue. The “hearing” conducted on 10 January 2005 took place before a different Magistrate in the Youth Court from the one who conducted the hearing in May 2005. I was not provided with any explanation as to how that came about. There is no suggestion that it was with the consent of the appellants. It does not appear to have any statutory authority. Ordinarily an opening is part of a trial. Once a judicial officer presiding at a trial has heard the opening that judicial officer is ordinarily regarded as being seized of the matter. If for any reason the matter is adjourned, the judicial officer is regarded as “part heard” in the matter. Absent particular circumstances, or perhaps the parties’ consent, it is not open to the judicial officer to desist from hearing the matter and for another to take it over. Support for those propositions is to be found in Wentworth v Rogers;[29] Young v Allan;[30] Sealy v Nichol;[31] and R v Schwarten.[32] The substitution of one judicial officer for another part way through the hearing of the matter is an irregularity which may, in some circumstances, warrant appellate intervention to require a trial de novo.[33] However, the guiding principle is the interests of justice. If what occurred on 10 January 2005 was the commencement of the hearing of the application before the first Magistrate, the interests of justice would not be served in this case by setting aside the decision of second Magistrate on 12 May 2005. As the opening was in writing, that Magistrate had available to him exactly the same material as was available to the first Magistrate. Indeed, counsel for the Minister “re-opened” the Minister’s case on 9 May 2005. The second Magistrate heard the whole of the evidence. In those circumstances and given the subject matter of the application, it would not be appropriate to order that the Magistrate’s decision be set aside on this ground.
Magistrate’s Interview of the Child
[29] (1986) 6 NSWLR 642 at 645-9, per Kirby P.
[30] [1959] VR 226 at 227, per Lowe J.
[31] (1977) 17 ALR 104 at 105-6, per Muirhead J.
[32] (1965) Qd R 276 at 282, per Douglas J.
[33] Wentworth v Rogers, (1986) 6 NSWLR 642 at 649, per Kirby P.
The Magistrate disclosed to the parties on the last day of the hearing that he had, that morning, seen B privately in chambers with Mr Croser. So far as the transcript reveals, that occurred without any prior notification to the parties. Whilst the Youth Court may, on hearing an application pursuant to s 37, “inform itself as it thinks fit,[34] the propriety of a Magistrate seeing the child in his chambers without any prior notification to the parties of his intention to do so, let alone with their consent, may be an issue in some cases. It was not raised as an issue in this case. I note that the Magistrate did report to the parties in open Court the substance of his conversation with B.
Family Care Meeting
[34] CPA, s 45(1)(a).
Section 27(2) of the CPA provides, in effect, that the Minister cannot make an application for an order for the guardianship of a child “unless satisfied”:
(a)that it has not been possible to hold a meeting despite reasonable endeavours to do so; or
(b)     that an order should be made without delay; or
(c)     that the guardians of the child consent to the making of the application; or
(d)     that there is other good reason to do so.
No family care meeting was held in the present case. The transcript of the hearing does not reveal any explanation by the Minister’s counsel indicating why a meeting was not held. However, a report from Ms Saunders indicates that a referral for a family care meeting was made in November 2004. Her report indicates that the matter was raised before the Senior Judge in the Youth Court on 13 December 2004 and also that JH had stated his unwillingness to attend a family care meeting. No point was taken at the hearing about the fact that a family care meeting had not been held. Further, s 27(3) of the CPA provides that an application for an order of guardianship is not invalid by reason only of a failure to hold a family care meeting. In all these circumstances, nothing in this appeal turns on the fact that the Minister’s application was made without any family care meeting having been held.
Conclusion
For the reasons given above, each of the appeals of AH and JH is dismissed.