J O, S L B v Chief Executive of Department for Child Protection - [2025] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
J O, S L B v CHIEF EXECUTIVE OF DEPARTMENT FOR CHILD PROTECTION
[2025] SASC 150
Judgment of the Honourable Justice Gray (ex tempore)
29 August 2025
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
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SERVICE - DISPENSING WITH SERVICE
This matter is an appeal against a decision to dispense with service upon parents, the appellants, and to make final orders in their absence, by a magistrate of the Youth Court of South Australia in care and protection proceedings.
The appellants claim they were never served with documents regarding the proceedings and that they intended to contest the orders.
Both appellants complain that at the time of the orders they were not legally represented and had not been served and this amounted to a breach of procedural fairness. The appellants also allege misconduct by the respondent in proceedings and by their decisions regarding care of the child.
The respondent asserts that the appellants were aware of the proceedings and attempted service had been effected multiple times. It was also submitted that the appellants were afforded sufficiently reasonable opportunity to engage representation. The respondent denied any misconduct. Generally, the respondent asserted that the appellants brought into issue on the appeal the merits of the decision in the Youth Court, which should not be entertained in circumstances where there was no trial on the merits in that Court.
Held, dismissing the appeal:
1.There was sufficient evidence upon which the learned Magistrate could rely to be properly satisfied that the appellants were aware of the proceedings, and that service was being avoided, so as to order that service be dispensed with. The paramount consideration in making the care and protection orders was to protect the child from harm, and there was a proper basis for the learned Magistrate making the orders the subject of this appeal: [37]-[39];
2.The appellants did not make reasonable efforts to engage in the proceedings and were afforded procedural fairness, and the opportunity to engage in the proceedings, on multiple occasions: [46]; and,
3.The appellate jurisdiction of this Court is not the appropriate forum to engage in a review of the merits of the decision in the court below where no trial on the merits took place in that jurisdiction: [51], [55].

Children and Young People (Safety) Act 2017 (SA) s 7, s 10, s 51(3), s 56, s 59; Youth Court Act 1993 (SA) s 22, referred to.
Boddu v Minister for Immigration and Border Protection [2019] FCA 1340; Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420; H, A v Minister for Families & Communities [2005] SASC 339; H, JR v Department for Child Protection & Anor [2017] SASC 121; House v The King [1936] HCA 40; (1936) 55 CLR 499; Kioa v West [1985] HCA 81; (1985) 159 CLR 550; KM v Chief Executive of the Department of Child Protection & Ors [2021] SASC 9; M, L v Minister for Education and Child Development [2018] SASCFC 131; Minister for Child Protection v T, SJ & Ors [2018] SASCFC 46; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635; Re Willshire-Smith; Ex parte Randle & Taylor Services Pty Ltd (1994) 48 FCR 371, considered.

J O, S L B v CHIEF EXECUTIVE OF DEPARTMENT FOR CHILD PROTECTION
[2025] SASC 150
Civil: Single Judge Appeal
GRAY J (ex tempore):
Introduction

This matter concerns an appeal against orders that a child be placed under the guardianship of the Chief Executive of the Department for Child Protection (‘DCP’) for a period of three months. The child is 15 years old and was legally represented in the Youth Court and this Court by an independent children’s lawyer.[1] The appellants, who are the parents of the child, contend that they were not accorded procedural fairness prior to the making of the orders in the Youth Court and that orders were made in their absence. They also allege misconduct in the conduct of the proceedings, which appears to be an allegation concerning misconduct by the Chief Executive.
[1] I will refer to her as ‘the child.’ I mean no disrespect in doing so.
The respondent contends that there was no denial of procedural fairness and that the appellants failed to engage in the Youth Court proceedings. The respondent denies any misconduct and contends that it is not appropriate for this Court, in the circumstances of this case, on an appeal, to engage in a merits review of the care and protection order.
Background
The background to this matter is that on 26 February 2025, the Chief Executive of the DCP filed an originating application in the Youth Court.[2] That application sought orders, firstly, that the child be placed under the guardianship of the Chief Executive for a period of three months[3] and, secondly, that service of the application and accompanying documents upon the child be dispensed with.[4] The grounds upon which the order was sought include concerns in relation to domestic and family violence, and an alleged lack of parental engagement with the DCP.[5] Service of the application was attempted on the appellants on 26 February 2025, by means of a process server attending the appellants’ last known address and contacting the appellants’ last known mobile telephone numbers.[6] Service was not effected on that occasion, however, the first appellant acknowledged by telephone that he was aware of the documents and of the DCP attempting to contact him by email.[7]
[2]     Appeal Book (FDNs 7 and 8) (‘AB’) at 20-6 (Originating Application dated 26 February 2025 (FDN 3)).
[3]     Children and Young People (Safety) Act 2017 (SA) s 53(1)(e).
[4]     Children and Young People (Safety) Act 2017 (SA) s 52(5).
[5]     AB at 23-5 (Originating Application dated 26 February 2025 (FDN 3)).
[6]     AB at 70-1 (Affidavit of Attempted Service on S B sworn 28 February 2025) and 82-3 (Affidavit of Attempted Service on J O sworn 28 February 2025).
[7]     AB at 82-3 (Affidavit of Attempted Service on J O sworn 28 February 2025).
On 28 February 2025, the matter was first heard in the Youth Court. The first appellant appeared in person. There was no appearance by or for the second appellant. The child was legally represented.[8]
[8] AB at 108-9 (Record of Outcome dated 28 February 2025 (FDN 5)).
The transcript of the hearing of 28 February 2025 indicates that the first appellant advised the learned Magistrate that he was seeking to organise legal advice.[9] The matter was adjourned to 25 March 2025, with the learned Magistrate making an interim order placing the child under the guardianship of the Chief Executive during the period of the adjournment, pursuant to s 53(2) of the Children and Young People (Safety) Act 2017 (SA) (‘CYPS Act’).[10]
[9] AB at 116 (Transcript of Proceedings (Youth Court, YTH-25-000111, Magistrate Jandy, 28 February 2025) T3.9-12).
[10] AB at 108-9 (Record of Outcome dated 28 February 2025 (FDN 5)).
The learned Magistrate also directed the Youth Court Registry to contact the second appellant to advise her of the adjourned date and time and that final orders may be made in her absence if she did not attend.[11]
[11] AB at 108-9 (Record of Outcome dated 28 February 2025 (FDN 5)).
During the period of the adjournment, the respondent attempted service on the first appellant on five occasions.[12] Service was not effected on the first appellant, but the first appellant acknowledged via text message that he was aware that service was being attempted.[13] The first appellant also, during the period of the adjournment, emailed the Youth Court Registry indicating that he required ‘about six weeks’ to obtain legal representation.[14]
[12] AB at 84-90 (Affidavit of Attempted Service on J O sworn 6 March 2025; Affidavit of Attempted Service on J O affirmed 14 March 2025; Affidavit of Attempted Service on J O sworn 19 March 2025).
[13] AB at 84-5 (Affidavit of Attempted Service on J O sworn 6 March 2025) and 89-90 (Affidavit of Attempted Service on J O sworn 19 March 2025).
[14] AB at 120 (Transcript of Proceedings (Youth Court, YTH-25-000111, Magistrate Jandy, 25 March 2025 (’25 March 2025 Transcript’)) at T2.8-10).
During the period of adjournment, service was also attempted on the second appellant on six occasions.[15] Service was not effected on the second appellant.
[15] AB at 72-7 (Affidavit of Attempted Service on S B sworn 6 March 2025; Affidavit of Attempted Service on S B sworn 19 March 2025; Affidavit of Attempted Service on S B sworn 25 March 2025).
On 25 March 2025, the matter was heard before a magistrate in the Youth Court. The first appellant appeared via telephone link. There was no appearance by or for the second appellant. The child was legally represented by the child representative.[16] During the second hearing before the Youth Court, the learned Magistrate referred to the email received from the first appellant requesting an adjournment to seek legal advice. An adjournment for this purpose was not opposed by the respondent.[17] The matter was adjourned to 5 May 2025, with the learned Magistrate noting that the first appellant should write the date and time down.[18] The first appellant responded to the effect that he could make himself available at that time.[19] A further order was made placing the child under the guardianship of the Chief Executive during the period of adjournment.[20]
[16] AB at 112-3 (Record of Outcome dated 25 March 2025 (FDN 15)).
[17] 25 March 2025 Transcript at T2.14-6.
[18] 25 March 2025 Transcript at T3.14-5.
[19] 25 March 2025 Transcript at T3.16-7.
[20] AB at 110 (Care and Protection Order dated 25 March 2025 (FDN 16)).
During the period of adjournment, service was attempted again on the second appellant on one occasion.[21] On 5 May 2025, the matter proceeded to a hearing before a magistrate on a third occasion. There was no appearance by or for either appellant.[22] Non-attendance was indicated by the Sheriff’s officer.[23] The respondent requested that the learned Magistrate proceed to dispense with service on the appellants and finalise the matter.[24] The child representative supported service on the appellants being dispensed with and also sought orders that service on the child be dispensed with.[25] The learned Magistrate then:
1. Ordered that service be dispensed with for both appellants pursuant to s 52(5) of the CYPS Act, having reviewed the filed affidavits of attempted service and concluded that the appellants were aware of the application.[26]
2. Granted the care and protection order having regard to the provisions of the CYPS Act and the materials filed by the respondent.[27]
3. Ordered that service be dispensed with for the child pursuant to s 52(5) of the CYPS Act, having regard to her age.[28]
[21] AB at 78-80 (Affidavit of Attempted Service on S B affirmed 24 April 2025).
[22] AB at 18 (Record of Outcome, 5 May 2025 (FDN 20)).
[23] AB at 125-6 (Transcript of Proceedings (Youth Court, YTH-25-000111, Magistrate Jandy, 5 May 2025 (‘5 May 2025 Transcript’) at T3.31-3, T4.5-13).
[24] 5 May 2025 Transcript at T3.30-5, T4.3-4.
[25] 5 May 2025 Transcript at T4.35-T5.14.
[26] 5 May 2025 Transcript at T4.14-9.
[27] 5 May 2025 Transcript at T4.28-32.
[28] 5 May 2025 Transcript at T5.2-14.
Nature of the appeal
The appellants appeal pursuant to s 22(1) of the Youth Court Act 1993 (SA) (‘YC Act’) to a single judge of the Supreme Court.[29]
[29] Youth Court Act 1993 (SA) s 22(2)(b)(iii).
The appeal is by way of rehearing.[30] The respondent on this appeal submits that in circumstances where a full hearing on the merits was not conducted in the Youth Court, the Supreme Court is not the appropriate forum for a review of the evidence and merits of the application.[31]
[30] H, A v Minister for Families & Communities [2005] SASC 339 at [30]-[31] (White J).
[31] H, JR v Department for Child Protection & Anor [2017] SASC 121 at [30]-[31], [50] (Nicholson J); M, L v Minister for Education and Child Development [2018] SASCFC 131 at [136] (Kourakis CJ, Stanley and Lovell JJ).
In my view, the nature of the appeal will be guided by the manner in which the matter proceeded in the Court below as well as by having regard to the grounds of appeal.
The respondent further submits that the orders subject of the appeal are discretionary decisions of the learned Magistrate and to succeed on the appeal, the appellants must establish that those decisions were affected by a process error, or an outcome error of the kind identified in House v The King.[32]
[32] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
The parties’ submissions
The appellants claim that they had not been served with documents. They state that it was agreed that service could be effected on a lawyer and that this was not done. That was a submission advanced by the first appellant. The appellants also complain that orders were made in their absence at a time they were not legally represented. The appellants claim they were expecting to be linked into the hearing via telephone as had been done at the previous hearing. The first appellant also claims in oral submissions today that he has suffered trauma as a consequence of previous actions by the respondent, and that this affected his ability to be served. The appellants indicate they were going to contest the orders and were awaiting funds for lawyers, as they say had been mentioned to the Youth Court at a previous Youth Court hearing.
The appellants also claim misconduct as a ground of appeal. Whilst this ground is not particularised, this appears to be, and was clarified at the hearing, as a complaint in relation to the conduct of the respondent. In particular, the appellants filed affidavit material in which they make various allegations concerning the Department’s conduct and also in relation to the suitability of family members with whom the appellants believe the child has been placed.[33]
[33] The complaints also appear to extend, in some respect, to the conduct of other interstate child protection agencies who are not parties to this appeal.
In considering the grounds of appeal raised by the appellants, I have had regard to all of the grounds they have raised, as well as all of the affidavit material that they have sought to put forward in support of their claims, as well as to the written and oral submissions that the appellants have advanced.
In response to the issues raised by the appellants, the respondent asserts that the function of requiring a party to be a served is to ensure they are notified of the proceedings and have the opportunity to answer them.[34] The respondent submits that the affidavits of attempted service filed in the Youth Court[35] identify that numerous attempts were made to serve the appellants personally as is required by s 52(2) of the CYPS Act. The respondent submits that it was upon reviewing those affidavits that the learned Magistrate formed the view that the appellants appeared to be avoiding service.[36]
[34] Re Willshire-Smith; Ex parte Randle & Taylor Services Pty Ltd (1994) 48 FCR 371 at 374-5 (von Doussa J).
[35] AB at 70-90 (Affidavit of Attempted Service on S B sworn 28 February 2025; Affidavit of Attempted Service on S B sworn 6 March 2025; Affidavit of Attempted Service on S B sworn 19 March 2025; Affidavit of Attempted Service on S B sworn 25 March 2025; Affidavit of Attempted Service on S B affirmed 24 April 2025; Affidavit of Attempted Service on J O sworn 28 February 2025; Affidavit of Attempted Service on J O sworn 6 March 2025; Affidavit of Attempted Service on J O affirmed 14 March 2025; Affidavit of Attempted Service on J O sworn 19 March 2025).
[36] 25 March 2025 Transcript at T3.6-7. While the First Appellant did indicate that he sought substituted service on his legal representative once retained (see AB at 112-3 (Record of Outcome dated 25 March 2025 (FDN 15)), he did not subsequently retain a legal representative.
The respondent relies upon the consequence to a party who is avoiding service as was explained in Plenty v Dillon:[37]
failure to serve a summons does not mean that the administration of justice is frustrated. When the defendant deliberately refuses to accept or evades service of the summons, judgment against him or her may still be entered. The defendant cannot complain in those circumstances that the rules of procedural fairness have been breached. Nor can he or she complain if execution subsequently issues.
[37] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 652-3 (Gaudron and McHugh JJ).
The respondent further submits that a function of service is to ensure a party is notified of the proceedings, and a party’s conduct, including by filing documents or attending proceedings, may constitute the acknowledgment that the proceedings have come to his or her attention.[38] The respondent submits that s 52 of the CYPS Act provides that the Youth Court has the power to authorise substituted service of a s 53 application[39] and also to dispense with the requirements for service altogether.[40] The respondent submits that the Youth Court has a broad discretionary power to authorise substituted service or dispense with service altogether, and that in the circumstances of this case, no error was demonstrated in the learned Magistrate’s decision to dispense with service under s 52(5).
[38] Re Willshire-Smith; Ex parte Randle & Taylor Services Pty Ltd (1994) 48 FCR 371 at 374 (von Doussa J). See also Commissioner of Police v Knight; Commissioner of Police v Metters [2025] SASC 72 at [12] and [16] (B Doyle J).
[39] Children and Young People (Safety) Act 2017 (SA) s 53(3).
[40] Children and Young People (Safety) Act 2017 (SA) s 53(5).
In relation to the procedural fairness grounds, being grounds 2-5 of the appellants’ appeal, and also, to some extent, ground 1, the respondent submits that procedural fairness is context-specific, with flexible requirements to determine what is fair in all of the circumstances.[41] The respondent submits that in the context of proceedings relating to an application under s 53 of the CYPS Act, relevant factors to determine what is required to afford procedural fairness include:[42]
1. The guiding principles in Parts 2 and 3 of Chapter 2 of the CYPS Act and the requirement in s 56(1) that matters be dealt with expeditiously;
2. The interests of both the Appellants and the Child in the orders sought, including factors such as the length of the order which is sought;
3. The right of appeal to this Honourable Court under s 22 of the YC Act against any orders made, and the right to attend and oppose future Youth Court proceedings should further application(s) be made under s 53; and
4. The broad discretionary grounds on which the Orders could be made.
[41] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 (Mason J); Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420 at 434-5, [56] (McColl JA).
[42] Respondent’s Written Submissions (FDN 9) at [55].
The respondent submits that, when regard is had to these matters, no error is demonstrated in the learned Magistrates decision to proceed to make orders in the absence of the appellants.
The respondent submits that the evidence establishes that by the third hearing of the matter on 5 May 2025, over nine weeks had lapsed since the application had been filed, including a period in which two adjournments had been granted at the request of the first appellant, and there was evidence which indicated the appellants appeared to be avoiding service and were aware of the proceedings. Further, the respondent submits that at the hearing of 5 May 2025, the appellants were not denied the opportunity to attend, rather, they failed to avail themselves of the opportunity to attend and were voluntarily absent from the proceedings.

The respondent further submits that there was no error in the learned Magistrate making the orders in circumstances where the appellants were not legally represented, as the first appellant had been granted two adjournments for a period of over nine weeks to obtain legal representation, and the second respondent had given no indication to the Youth Court that she intended to seek legal representation, as she had not engaged in the proceedings at all.
The respondent notes that a party ought to be given sufficient opportunity to secure legal representation, however, they do not need to be given an infinite opportunity to do so.[43]
[43] The respondents rely upon the decision of Boddu v Minister for Immigration and Border Protection [2019] FCA 1340 at [11] (Steward J). The principles applicable in criminal matters (i.e., Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292) do not apply in the civil context of an application under s 53 of the Children and Young People (Safety) Act 2017 (SA).
In relation to the ground of alleging misconduct, the respondent submitted that given that there had been no determination of the merits in the Youth Court, it was not appropriate for those matters to be determined on this appeal by this Court. The respondent submitted that the Youth Court is a specialist court, and the most appropriate forum for such a trial to be conducted.
I have also, on this appeal, had regard to the material put forward by the independent children’s lawyer, to assist the Court in the determination of this appeal. This indicates that the child was informed and consulted in March 2025, both about the application for care and protection, and also about the issue of dispensing with service, [44] and the Court has been assisted by that material.
Consideration
[44] Affidavit of Anna Kate O’Brien affirmed 20 August 2025 (FDN 18).
The legislative scheme
Pursuant to s 50(3)(a) of the CYPS Act, the Chief Executive, being the respondent, may apply for an order under s 53 if the Chief Executive believes the child or young person is at risk of harm and that the making of an order is necessary or appropriate to protect the child from harm. The parties to such an order are the applicant, the child and each parent or guardian of the child.[45]
[45] Children and Young People (Safety) Act 2017 (SA) s 51(1).
There is a general requirement that the application must be served personally on the child if the child is above the age of 10 years, and on each party to the application.[46] However, if it is not reasonably practicable to serve a copy of the application personally on a party or the whereabouts of a party cannot, after reasonable enquiry, be ascertained, the copy of the application may be served on the person in accordance with s 168 of the CYPS Act or in any other manner authorised by the Youth Court.[47] Further, the Youth Court may, for any proper reason dispense with the requirement for service.[48]
[46] Children and Young People (Safety) Act 2017 (SA) s 52(1).
[47] Children and Young People (Safety) Act 2017 (SA) s 52(3).
[48] Children and Young People (Safety) Act 2017 (SA) s 52(5).
On an application under s 53, if the Youth Court is satisfied that it is appropriate to do so, it may make one or more orders in relation to the child.[49] The criteria for making the application, namely, including whether there is reasonable suspicion that the child or young person is at risk of harm and that the order is necessary or appropriate to protect the child from harm, and the grounds of the application, are relevant in identifying whether it is appropriate to make a care and protection order.[50] The Youth Court must exercise its powers to make orders in accordance with the paramount consideration of ensuring that children are protected from harm[51] and the other considerations which are subservient to this paramount consideration.[52] These considerations include, amongst other things, that the decisions and actions under the CYPS Act should be taken in a timely manner.[53]
[49] Children and Young People (Safety) Act 2017 (SA) s 53(1)
[50] Minister for Child Protection v T, SJ& Ors [2018] SASCFC 46 at [11] (Vanstone J, Kourakis CJ and Nicholson J agreeing).
[51] Children and Young People (Safety) Act 2017 (SA) s 7.
[52] See Children and Young People (Safety) Act 2017 (SA) ch 2 pts 2-3.
[53] Children and Young People (Safety) Act 2017 (SA) s 10(1)(a).
The Youth Court seeks to deal with all proceedings under the CYPS Act expeditiously and with regard to the degree of urgency of each particular case.[54] In accordance with the relevant rules, a defended application is generally to be listed for trial, so far as practical, so that a trial may commence within 12 weeks of a filing of an application. The applicant bears the onus of proving that an order under s 53 should be made unless the child the subject of the application is, pursuant to an order of the Youth Court, under the guardianship or in the custody of the Chief Executive. In these circumstances, subject to certain exceptions, the onus is on the objector to prove that the order should not be made.[55]
[54] Children and Young People (Safety) Act 2017 (SA) s 56(1).
[55] Children and Young People (Safety) Act 2017 (SA) ss 59(1)-(2).
In the circumstances of this case, although at the time of the hearing of this appeal, the interim care and protection order had expired, there is still utility in consideration of the appeal. The reason for this is because a further application has been made for care and protection orders to be made in respect of the child, and whether or not the current orders are upheld is relevant to the question of the onus as provided for in ss 59(1) and (2) of the CYPS Act.
Service
Section 52 of the CYPS Act grants the Youth Court power to authorise substituted service of a s 53 application[56] or to dispense with the requirement of service altogether.[57] These are broad discretionary powers which are required to be exercised judicially and in accordance with the principles of procedural fairness. I find in the circumstances of this case no error is demonstrated in the learned Magistrate’s decision to dispense with service under s 52(5).
[56] Children and Young People (Safety) Act 2017 (SA) s 53(3).
[57] Children and Young People (Safety) Act 2017 (SA) s 53(5).
In forming this view, I have had regard to the fact that prior to making the service orders, the learned Magistrate sought the views of the child representative, and satisfied himself that the appellants were aware of the proceedings.[58] In particular I have regard to the fact that, in relation to the first appellant, the first appellant had attended the proceedings on the first two occasions[59] and the affidavits of attempted service filed in the proceedings indicate that he was aware of the proceedings.[60]
[58] AB at 125-6; 5 May 2025 Transcript at T3.33-T4.3 and T4.13-28.
[59] AB at 108 (Record of Outcome dated 28 February 2025 (FDN 5)) and 112 (Record of Outcome dated 25 March 2025 (FDN 15)).
[60] See AB at 82-90 (Affidavit of Attempted Service on J O sworn 28 February 2025; Affidavit of Attempted Service on J O sworn 6 March 2025; Affidavit of Attempted Service on J O sworn 14 March 2025; Affidavit of Attempted Service on J O sworn 19 March 2025).
In relation to the second appellant, the DCP reports which were before the Youth Court on the application set out information which indicated the basis for the DCP’s belief that the appellants maintained a relationship and resided together.[61] The email address used to contact the appellants was that of the second appellant[62] and the Youth Court Registry had been directed to notify the second appellant of the proceedings.
[61] AB at 43-4 and 52 (Report of Emily Hale in Support of an Application for Care and Protection Orders dated 25 February 2025) (‘First DCP Report’).
[62] AB at 50-2, (First DCP Report) 57 (Addendum Report of Emily Hale in Support of an Application for Care and Protection Orders dated 28 February 2025) and 61 (Addendum Report of Emily Hale in Support of an Application for Care and Protection Orders dated 21 March 2025).
There is no basis to consider that the learned Magistrate, in determining whether to make the service order, did not properly balance the interests of the appellants against the other relevant considerations, including the guiding principles in Chapter 2 of Parts 2 and 3 of the CYPS Act and the requirements in s 56(1) that the proceedings be dealt with expeditiously.
There was significant material put before the Youth Court Magistrate which indicated that the child was at risk of harm and that the making of a care and protection order was necessary or appropriate to protect the child from harm. Further, the Youth Court Magistrate sought the views of the child representative who indicated support for the orders both dispensing with service and the making of the care and protection orders.
There was significant evidence in the numerous affidavits of attempted service upon which the learned Magistrate could properly be satisfied that the appellants were aware of the proceedings and had been avoiding service such that there was a proper basis for dispensing with for the requirement for personal service. Further, no error has been demonstrated in the learned Magistrate’s decision to dispense with service on the child.
The paramount consideration for the learned Magistrate in making the orders was to protect the child from harm.[63] The learned Magistrate in making the orders indicated that he had read the materials and it is also relevant that the child representative did not oppose that service on the child be dispensed with and did not oppose the making of the orders.[64] I would dismiss ground 1.
[63] Children and Young People (Safety) Act 2017 (SA) s 7.
[64] 5 May 2025 Transcript at T5.1-18. See also H, JR v Department for Child Protection & Anor [2017] SASC 121 at [36] (Nicholson J).
Procedural fairness – grounds 2 – 5
In relation to the procedural fairness grounds, and in particular grounds 3 and 5 which allege that the learned Magistrate erred in proceeding to make orders in circumstances where the appellants were not legally represented, it is relevant to note that the first appellant had been granted two adjournments for a period of over nine weeks to obtain legal representation. In respect of the second appellant, the second appellant had given no indication to the Youth Court that she intended to seek legal representation and had not engaged in the proceedings at all. As was noted in Boddu v Minister for Immigration and Border Protection,[65] in considering the question of legal representation and procedural fairness, it is relevant to consider whether or not in the circumstances of the case the parties had been afforded a sufficient opportunity to obtain legal representation.
[65] Boddu v Minister for Immigration and Border Protection [2019] FCA 1340 at [11] (Steward J).
In this case, the evidence indicates that the parties did have a reasonable opportunity to obtain legal advice, albeit that they may not have had the funds to pay for such advice. Whilst that is regrettable, that does not amount to a denial of procedural fairness. I would not find in the circumstances of this case that the lack of legal representation occasioned any procedural unfairness to the appellants. The orders were made on 5 May 2025, in the appellants’ absence, due to the appellants’ failure to engage in service and to attend court on that occasion.
Whilst the appellants assert in their grounds of appeal that they were anticipating a telephone call in respect of the proceedings, considering the evidence on that issue before this Court, I do not accept that contention. That matter was not the subject of specific or detailed affidavit evidence from the appellants, although extensive affidavit material was filed by the appellants on other issues. In any event, I find that such an expectation was not reasonably based. The expectation of a phone call was not reasonable in circumstances where attendance via telephone on a previous occasion was organised on the basis of illness, rather than an ongoing request for appearance via telephone. Further, such an expectation is inconsistent with the discussion had with the learned Magistrate at the previous hearing in which the learned Magistrate went to some lengths to explain the next hearing date to the first appellant and to ensure that the first appellant had noted the hearing date.
The first appellant, having been notified of the hearing date on the previous occasion, did not provide cogent evidence of any attempt to contact the Registry or to seek to attend by telephone on the day the orders were made. In respect of the second appellant, the evidence indicates a lack of engagement in the proceedings and there was a reasonable basis for the learned Magistrate to consider that service was repeatedly attempted. There was extensive affidavit material filed about the numerous attempts to serve both appellants.
Whilst procedural fairness requires that a party be given the opportunity to be heard, it is entirely a matter for the party as to whether they avail themselves of that opportunity. It does not amount to a denial of procedural fairness for a party to disengage from proceedings and then make a complaint that they had not been afforded procedural fairness. In KM v Chief Executive of the Department of Child Protection,[66] Lovell J described this as:
… Fairness is not an abstract concept and the concern of the law is to avoid a practical injustice. It must be remembered that procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that a tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”.
(citations omitted)
[66] KM v Chief Executive of the Department of Child Protection & Ors [2021] SASC 9 at [46] (Lovell J).
Should a party not avail themselves of the opportunity to participate in the proceedings they assume the risk of not doing so. In H, JR v Department for Child Protection,[67] this was described as follows:
In the circumstances where the appellant voluntarily left the proceedings as he did, he created an environment where he was no longer willing or able to participate and which was entirely of his own doing. The appellant assumed the risk that the trial would proceed to a conclusion either on the merits or, as it happened, by consensual resolution. I am satisfied that the Magistrate did not err in continuing with the hearing once, and notwithstanding that, the appellant had left.
[67] H, JR v Department for Child Protection & Anor [2017] SASC 121 at [35] (Nicholson J).
In this case, I reject the appellants’ submission that there had been a denial of procedural fairness, and I find that their non-attendance at the hearing on 5 May 2025 was due to the appellants’ deliberate non-engagement with the proceedings. I further find that the appellants did not make reasonable efforts to engage in the proceedings and the learned Youth Court Magistrate was justified in proceeding in the manner in which he did. I would dismiss grounds 1-5 of the appeal.
Misconduct
As the appellants sought to explain in their submissions and based upon the affidavit material filed by the appellants, which I have considered, the allegations of misconduct relate primarily to the appellants’ concerns in relation to the conduct of the respondent and other child protection authorities and to the submissions made to the Youth Court.
In particular, the appellants raised concerns about the actions of staff within the DCP and, in particular, concerns as to the welfare of the child and the suitability of family members with whom the appellants understand the child to be residing.
The matter now before this Court did not proceed to a hearing on the merits in the Youth Court due to the appellants’ non-attendance. There was significant material placed before the Youth Court concerning the need for care and protection orders. There is an issue as to whether or not this Court should, on appeal, intervene in the way sought by the appellants and set aside the care and protection orders that have been made. Although that order has now expired there remains some utility in considering this issue as the existence of such an order has a bearing on the onus in the future application for the extension of that order.[68]
[68] Children and Young People (Safety) Act 2017 (SA) s 59.
Having said that, it is relevant to note that in care and protection matters, the Youth Court has considerably more experience in dealing with these matters in comparison to this Court. As was held by the Full Court in M, L v Minister for Education and Child Development:[69]
The institutional experience of the Youth Court in resolving disputes over the residence and care arrangements which best protect children cannot be overstated. The parens patriae jurisdiction of this Court is rarely invoked and when it is, it is not for the purpose of deciding controversies over the placement and guardianship of children. On the other hand, the judiciary of the Youth Court hear such matters day in and day out. In doing so, they come to obtain a deep understanding of child psychology, the emotional needs of children and of the wide range of very diverse ways in which children can be successfully cared for. Moreover, the judiciary of the Youth Court have the invaluable experience of monitoring child care arrangements over time, of seeing which arrangements work and which do not, and in accumulating insights into the reasons for the successes and breakdowns of child placements. The judiciary of the Youth Court make those assessments dispassionately and independently of the officers and experts of Families SA whose opinions may, through pressure of work, sometimes be mistaken. Finally, the Youth Court also develops an understanding of family dynamics and their effects on children in its criminal jurisdiction.
[69] M, L v Minister for Education and Child Development [2018] SASCFC 131 at [134] (Kourakis CJ, Stanley and Lovell JJ).
In my view, it is not appropriate for this Court in its appellate jurisdiction to engage in a review of the merits of the care and protection order where there has been no contested hearing in the Youth Court of those merits, given the manner in which the matter proceeded.
For the reasons set out in my interlocutory ruling, I determined to receive all of the material upon which the appellants sought to rely as well as the material from the respondent which was subject to objection by the appellants. My consideration of that material does not indicate a reconsideration of the desirability of the care and protection order on the basis of that material is warranted. This is particularly so in circumstances where the care and protection order has expired, and the matter is currently before the Youth Court and the subject of a further application for extended care and protection orders. As was held by Nicholson J in H, JR v Department for Child Protection:[70]
Because of the manner by which this matter proceeded in the Youth Court, there has been no complete exploration on the merits. There has not been a trial during which the appellant has presented his case. The Youth Court is a specialist court and the most appropriate forum for such a trial to be conducted. It is undesirable that any such trial should take place in this Court through the appellant process. It is always open to the appellant to bring an application in the Youth Court pursuant to section 40 seeking revocation or variation of any of the orders that have been made and, through such a process, to have the opportunity to present his case.
[70] H, JR v Department for Child Protection & Anor [2017] SASC 121 at [50] (Nicholson J).
In the circumstances of this case where there is a further application for care and protection orders, the appellants will have the opportunity to engage in that process before the Youth Court, and I am informed that a preliminary hearing of that application is listed for next week.

It is for this reason that I have dealt with this matter urgently, and provided ex tempore reasons, based on all the material received.
It follows that I dismiss ground 6 of the appeal.
Conclusion and orders
I dismiss the appeal.
I will hear from the parties as to any further orders.