JG v Chief Executive, Department for Child Protection - [2023] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
JG v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION & ORS
[2023] SASC 80
Judgment of the Honourable Justice Bampton
18 May 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
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
Appeal against a decision of a Youth Court Magistrate granting the Chief Executive of the Department for Child Protection’s application for long-term care and protection orders placing three children under its guardianship until they each attain 18 years of age – the application was opposed by the appellant, who is the children’s biological mother, and their biological father – the application was supported by the children’s legal representative – the appellant contends the Magistrate erred in failing to give due weight to the wishes of the children, by failing to consider that long-term care and protection were the least preferred option under the Children and Young People (Safety) Act 2017 (SA), by failing to take into account the irreversible harm suffered by the children while in State care, and by placing undue weight on past history and the Department for Child Protection’s misrepresented facts – whether there was an error in the exercise of the discretion to make the care and protection orders.
HELD: Appeal dismissed – the appellant failed to demonstrate any error in the Magistrate’s decision.
Children and Young People (Safety) Act 2017 (SA) ss 7, 8, 11(3), 17, 41, 50, 50(3), 53, 53(1)(g), 55, 59, 62, 62(3), 63(1)(b); Youth Court Act 1993 (SA) ss 22, 22(3); Family Law Act 1975 (Cth) s 69ZK; Youth Court (Care and Protection) Rules 2018 (SA) r 11(2), referred to.
RS v Chief Executive of the Department for Child Protection [2022] SASCA 58; Lee v Lee (2019) 266 CLR 129; Minister for Child Protection v T, SJ & Ors [2018] SASCFC 46; M, L v Minister for Education and Child Development [2018] SASCFC 131; CDJ v VAJ (No 2) (1998) 197 CLR 172; House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144, considered.

JG v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION & ORS
[2023] SASC 80
Appeal to a single Judge

BAMPTON J: Ms G and Mr M are the biological parents of TM aged 15, TGM aged 13, and CGM aged 11 (“the family”). On 22 August 2022, a Magistrate in the Youth Court made care and protection orders pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (“the Act”) in relation to TM, TGM, and CGM (“the children”), placing them under the guardianship of the Chief Executive of the Department for Child Protection (“the Chief Executive”) until they respectively attain the age of 18 years (“the orders”).
Ms G seeks an extension of time to appeal the orders submitting she attempted to file the notice of appeal (“the notice”) within time but was required to make further amendments to the notice. I accept this submission and noting counsel for the Chief Executive does not object, I extend the time for filing the appeal to 11 October 2022.
Grounds of Appeal
Ms G relies on the following four grounds of appeal:
1.The Magistrate erred in making its decision in failing to give due weight to the wishes of the children, and the children’s views not being heard.
2.The Magistrate erred in making its decision by failing to consider that leaving the children in the custody of the Chief Executive is the least preferred option under the Act, no evidence was given by Ms Crumps Assessment to this fact. Nor that the Chief Executive could guarantee another placement would be free of risk and psychological harm, caused to the children and their Mental Health.
3.The Magistrate erred in taking into account the considerable and emotional harm the children have suffered will suffer and the irreversible to the children’s emotional wellbeing in State care and Failed to put due weight on this evidence.
4.The Magistrate put undue weight on past history and misrepresented facts by the Departments evidence.
Ms G who, was self-represented on the hearing of the appeal, seeks orders allowing the appeal, setting aside the Magistrate’s order, that the matter be re‑heard, that an undertaking be made, and that the matter be resolved by way of reunification with her, while the children are in her care. Whilst Mr M did not appeal the order, he was present in the public gallery at the hearing of the appeal.
For the following reasons, no error has been demonstrated in the Magistrate’s decision to make the order and I dismiss the appeal.
Appeal against judgments given in the Youth Court
Section 22 of the Youth Court Act 1993 (SA) (“the Youth Court Act”) provides that an appeal from any judgment given by a Magistrate in the Youth Court, other than an interlocutory decision, lies as of right to a single Judge of the Supreme Court.
On appeal I am bound to conduct a real review of the evidence given in the Youth Court and of the Magistrate’s reasons for judgment to determine whether the Magistrate erred in fact or law.[1] As the Court of Appeal noted in RS v Chief Executive of the Department for Child Protection,[2] whilst appellate restraint must be exercised concerning the Magistrate’s factual findings, given the advantages enjoyed by the Magistrate, the appellate Court is otherwise in as good a position as the Magistrate to decide on the proper inferences to be drawn from the facts which are undisputed or which, having been disputed, are established by the findings of the Magistrate.[3]
[1] Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
[2] [2022] SASCA 58, [10].
[3] Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
The Magistrate’s decision to make the order pursuant to s 53 of the Act involved the exercise of a discretion. As such, “apart from whether the Youth Court made any error of fact or law, the exercise of discretion can only be vitiated where it is demonstrated that the” Magistrate “took into account an irrelevant factor, or ignored a relevant factor, or proceeded on a wrong principle, or misunderstood the facts, or arrived at an unreasonable or plainly unjust result”.[4]
[4] RS v Chief Executive of the Department for Child Protection [2022] SASCA 58 at [11]; House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
On appeal I may confirm, vary, or set aside the judgment, or remit the matter for hearing or further hearing.[5]
[5] Youth Court Act1993 (SA) s 22(3).
The Children and Young People (Safety) Act 2017 (SA)
The paramount consideration in the administration, operation and enforcement of the Act is to ensure that children and young people are protected from harm.[6] In addition to the paramount consideration, the needs of the children:
(1)to be heard and have their views considered;
(2)for love and attachment;
(3)for self-esteem; and
(4)to achieve their full potential,
are also to be considered. It is also desirable that the connection of children and young people with their biological family be maintained.[7]
[6] Children and Young People (Safety) Act 2017 (SA) s 7.
[7] Children and Young People (Safety) Act 2017 (SA) s 8.
Part 3 of the Act relevantly prescribes the principles of intervention and of the placement principles.
Section 11(1) requires that children and young people who have been removed from the care of a person should be placed in a safe, nurturing, stable and secure environment, preferably with a person with whom they have an existing relationship.
The Act prescribes that the Minister, the Chief Executive, or a person authorised by the Chief Executive, may apply pursuant to s 50(3) of the Act for an order under s 53 if the applicant reasonably suspects that a child or young person is at risk and is of the opinion that the making of such an order is necessary or appropriate to protect a child or young person from harm. Section 17 defines “harm” and s 18 defines “at risk”. Harm is defined to include physical or psychological harm.[8] In assessing whether there is a likelihood or a risk that a child or young person will suffer harm, s 18(3) provides that regard must be had to not only the current circumstances of their care but also the history of their care and the likely cumulative effect on the child or young person of that history.
[8] Children and Young People (Safety) Act 2017 (SA) s 17.
As Vanstone J identified in Minister for Child Protection v T, SJ & Ors,[9] s 53 provides the Youth Court with a broad discretion to make a range of orders “where it is appropriate to do so”.[10] Her Honour noted:
(1)the Act does not identify specific factual matters about which the Youth Court must be satisfied before making an order; and
(2)the criteria for making an application set out in s 50(3), and the grounds of the application are relevant in identifying whether it is appropriate for the Youth Court to make the order sought.
[9] [2018] SASCFC 46, [11].
[10] Children and Young People (Safety) Act 2017 (SA) s 53(1).
Section 62 of the Act mandates that a child or young person must be given a reasonable opportunity to personally present to the Court their views relating to their ongoing care and protection in proceedings brought pursuant to the Act. This requirement applies whether or not the child or young person is represented by a legal practitioner in the proceedings.[11] Legal practitioners appointed to act for children or young people are obliged to comply with the provisions of s 63 of the Act.
[11] Children and Young People (Safety) Act 2017 (SA) s 62(3).
In this matter, the children were represented by a legal practitioner in the Youth Court and the Magistrate spoke to and had regard to the views of each of the children as detailed later in these reasons.
Facts are to be proved on the balance of probabilities in proceedings under the Act. As noted by the Magistrate in her judgment, whilst the Chief Executive bore the evidentiary onus, if that was met, then pursuant to s 59 of the Act the onus fell on Ms G and Mr M to persuade the Youth Court that the order should not be made. This was because the children were, pursuant to a care and protection order of the Youth Court, under the guardianship of the Chief Executive at the time the Chief Executive’s application was filed on 14 August 2020.
Background to the application for the long-term guardianship orders
Exhibit CE1 is the trial book filed by the Chief Executive in the Youth Court, comprising documents under the following headings:
(1)The Chief Executive’s court documents-long term application
(2)Birth Certificates of the Children
(3)Mother’s court documents
(4)Documents relating to children
(5)Reunification Court documents
(6)Department for Child Protection documents-short term application
(7)Documents relating to mother
(8)Documents relating to father
(9)Additional documents 12 January 2022, which includes Ms G’s and Mr M’s response and a parenting capacity report prepared by Dr Don Tustin concerning Ms G dated 7 January 2022
Exhibit CE2 is a list of additional documents complied by the Chief Executive’s solicitors comprising a report dated 18 February 2022 prepared by Department for Child Protection social workers (“Departmental workers”) concerning the children, a CAMHS report concerning TGM dated 14 February 2022, a psychologist’s report concerning TM dated 14 February 2022, and a psychologist’s report concerning CGM dated 14 January 2022.
The evidence tendered in the Youth Court trial revealed the following history.
The Department for Child Protection (“the Department”) had received 10 notifications regarding the family over the period between 2018 to 2020 relating to the children’s exposure to domestic violence, lack of attendance at school, and their trauma-related behaviours at school.
The Department’s involvement with the family commenced following reports from South Australia Police (“SAPOL”) that Ms G had contacted SAPOL and given a statement describing an incident in November 2019 where Mr M had pushed her, attempted to strangle her, verbally abused her and damaged property. During this incident, Ms G sustained injuries to her arm. Mr M was charged with two counts of aggravated assault, property damage, reckless driving, and resisting police. SAPOL raised concerns about domestic violence, having regard to their records concerning a domestic violence history dating back to 2006.
On 28 November 2019, an interim intervention order was issued by SAPOL against Mr M naming Ms G as the protected person. The interim intervention order prohibited communication between Mr M and Ms G, prohibited Mr M from being within 100 m of Ms G, and prohibited him from entering or remaining within 100 m of Ms G’s place of residence or employment.
On 30 January 2020, the Department received information from the children’s school regarding the children’s behaviour, including that two of them had drawn pictures of “killing people”, were displaying hypervigilance, were unable to concentrate at times, were depressed, were falling asleep during class for extended periods of time and reported staying awake due to their parents fighting. One of the children told Departmental workers on 30 January 2020 that “mum and dad fight”, “mum and dad hit each other”, and that she was “scared” when her parents fought. Departmental workers reported that the children also disclosed incidents of physical violence by Mr M on them, their mother, and the pet dog.
On 5 February 2020, Ms G advised Departmental workers during a meeting that Mr M was residing in her home. Mr M’s presence in the home was in contravention of the interim intervention order. Ms G agreed with the Department that domestic violence was a safety concern for the children. Ms G agreed to the following actions recorded in a safety plan to achieve safety:
(1)to abide by the interim intervention order including that Mr M must not be with 100 m of her;
(2)to attend a friend’s house if Mr M attended the family home;
(3)to attend another house in the street if Mr M attended the family home;
(4)to attend drug screening; and
(5)to work with the Department.
Ms G agreed the safety plan could not change without agreement and that if the children’s safety could not be guaranteed she would call a Departmental worker or supervisor.
On 9 February 2020, following the Department contacting SAPOL to report that Mr M was at the family home, Mr M was arrested for breaching the terms of the interim intervention order. During a family safety meeting on 11 February 2020, SAPOL informed Departmental workers that Mr M had been arrested for breaching the intervention order and that Ms G had picked him up from the police station. I infer Ms G picked Mr M up following his release on bail having been arrested and charged with contravening the interim intervention order and breaching bail.
Following unsuccessful attempts by the Department to engage Ms G in scheduled meetings, on 5 March 2020, Departmental workers accompanied by SAPOL officers conducted an unannounced home visit on Ms G. At the time of the visit, Mr M was asleep in the family home and is reported to have threatened Departmental workers lives and used profanities which resulted in him being arrested and remanded in custody. Ms G is reported to have expressed her belief that Mr M’s behaviour on this occasion was attributable to him coming down from methamphetamines. The children, who were present at the time of the unannounced visit, were removed[12] from their parents’ care due to the Department’s concern about the ongoing risk Mr M posed to their physical and psychological safety and Ms G’s lack of protective capacity. The children were placed with their maternal grandparents.
[12] The removal was pursuant to s 41 of the Act.
In March 2020, following removal from their parents’ care, Departmental workers reported that the children had not had any contact with Mr M since they entered out of home care and maintained that they did not wish to have any contact with him. The children are reported to have said that they hated Mr M, were scared of him and that he had hit them in the back of the head. The Department therefore determined that Mr M was not permitted to have any contact with the children.
The Chief Executive applied for four-month guardianship orders in respect of the children to allow time to assess and investigate the risk to the children and to assess the viability of reunification. In making the application, the Chief Executive submitted to the Youth Court that Ms G had allowed Mr M to reside with her and the children contrary to an active intervention order and contrary to the safety plan signed by Ms G agreeing to the Department’s condition that Mr M not reside in the family home.
The orders placing the children under the guardianship of the Chief Executive for four months were made by consent on 17 April 2020.
On 22 June 2020, the no contact conditions of the interim intervention order were varied by the Magistrates Court to remove the condition preventing communication between Mr M and Ms G.
In a report dated 5 August 2020, Departmental workers reported that during a family meeting on 20 March 2020 Ms G told the children Mr M was trying to get better and that he would not hurt them. It was also reported the children asked Ms G to stop believing that Mr M would get better.
The application for a short-term guardianship order
On 14 August 2020, the children were placed in a commercial care placement as their grandparents were unable to continue to care for them.
The Chief Executive made application for a care and protection order under s 50 of the Act and an interim guardianship order was made on 14 August 2020.
On 15 August 2020, SAPOL informed the Department that Ms G had informed Mr M where the children were located and he had attended at that location. As a result, the children were relocated.
On 15 August 2020, one of the children disclosed to a Departmental worker that they had experienced physical harm at the hands of Mr M, had witnessed Mr M perpetrate physical violence against their mother and that Mr M used to physically abuse the family dog in front of the children as a form of punishment.
In a report dated 27 August 2020, Departmental workers reported that TGM has disclosed that on 26 August 2020 Ms G had attended an oval with the family dog where TGM was playing football. When contacted later that day regarding her attendance at the football game, Ms G said she accidentally bumped into TGM. The Department stated in the 27 August 2020 report it remained concerned that Ms G and Mr M were in constant contact, that Ms G was attempting to remove the interim intervention order and that she was asking the children not to communicate with Departmental workers.
During a meeting with the Department on 4 September 2020, Ms G asserted the Department had fabricated the case for care and protection and that domestic violence was not a feature of her relationship with Mr M.
In a report dated 4 September 2020, the Departmental workers reported that Ms G was confused about why the Department was concerned about TGM having a telephone. The Department expressed concern regarding Ms G’s continued minimisation of the risk she placed the children in by giving TGM the phone, tracking the children’s whereabouts, informing Mr M of their location and Mr M attending that location, which resulted in the children having to be relocated. Concern was also expressed about Ms G telling the children they should not speak to Departmental workers which was impacting negatively on the children’s emotional wellbeing.

In a report dated 8 October 2020, the Department remained concerned that Ms G and Mr M were in constant contact, with Ms G still minimising the domestic violence incidents and the impact on her and the children. The Department, in stating it was prepared to continue to work with Ms G to ensure the best outcomes for the children, expressed the hope that Ms G would soon realise the negative impact of illicit substance use and domestic violence on her and the children and seek support.
In a report dated 23 November 2020, the Department expressed the concern regarding Ms G’s minimisation of Mr M’s past domestic violence and the impact on her and the children. The Department also expressed a concern regarding Ms G’s illicit substance abuse and its impact on her parenting capacity.
A 12-month interim guardianship order was granted by the Youth Court on 27 November 2020. The Chief Executive assessed the 12-month order was necessary to secure the children’s safety while Ms G and Mr M worked with the Department to address the child protection concerns. The matter was referred to the reunification stream of the Youth Court.
On 6 January 2021, the Department referred Ms G to the reunification service offered by the private care and protection consultancy, Connecting Families. On 12 January 2021, the Department held a meeting with Ms G and a Connecting Families social worker. During the meeting Ms G said she wanted the children returned to her care as soon as possible and that she was willing to work with the Department and Connecting Families. Ms G said while she wanted to improve Mr M’s relationship with the children and have the family back together, she felt Mr M was not committed to change and she needed to focus on the children.
On 28 January 2021, the Connecting Families social worker reported Ms G was engaging well with the service and had shown willingness to change and was even prepared to relocate to ensure the children were safe when returned to her care.
In a report dated 29 January 2021, Departmental workers reports reported they continued to notice, during contact with the children, Ms G minimised Mr M’s past aggressive behaviours towards the children and stopped the children from speaking negatively about him. When it was suggested to Ms G that she should allow the children to express their feelings in order to understand their response to domestic violence, Ms G said her personal values would not permit the children to use negative language against their father.
By reference to an email dated 17 March 2021 between SAPOL and the Department, on 16 March 2021 the interim intervention order was varied at Ms G’s request to permit Mr M to attend at Ms G’s home once in the presence of police to collect personal property. On 4 May 2021, a final intervention order was made against Mr M in terms identical to the interim intervention order varied on 16 March 2021.
In a Reunification Court report dated 29 January 2021, the Department reported it remained concerned regarding Ms G’s minimisation of Mr M’s past aggressive behaviours and domestic violence and the impact on her and the children. The Department acknowledged Ms G had continued seeking some support by engaging with domestic violence and reunification services and had expressed willingness to change but was yet to demonstrate change. The Department also acknowledged Ms G had reduced her use of illicit substances but was yet to maintain abstinence.
In a Reunification Court report dated 1 April 2021, the Department expressed concern that Ms G and Mr M did not fully understand and acknowledge the Department’s child protection concerns and safety issues within the family. The Department also expressed concern about Ms G pushing the children to meet with Mr M and mend their relationship with him against their will. Reference is made in the report to the children saying they would feel safe being at home with their mother. The children were then asked how they would feel about Mr M being at home and how they felt about their mother asking them to repair their relationship with him. TM said he did not want any contact with Mr M but would take the risk to go home to his mother because she will keep him safe and call the police if Mr M turned up. TGM recounted an incident when Mr M was under the influence of drugs and hit her and her dog with a cricket bat. TGM was asked whether things were different when her father was not under the influence of drugs. TGM said she could not remember him not being under the influence of drugs as he always used them.
Reference is also made in the 1 April 2021 report to the Connecting Families social worker reporting on 18 February 2021 that, having spoken to the children, it was clear the situation at home prior to their removal was frightening for them and they did not wish it to continue. The social worker reported the children clearly expressed they did not want to see Mr M.
The Connecting Families social worker provided an update to the Department on 25 March 2021 advising that Ms G and Mr M had completed the “Bringing up Great Kids” program and Mr M had signed up for the “Dad’s Business” program. The Connecting Families social worker also reported Ms G and Mr M:[13]
… have suggested no intention of permanently separating therefore it is really important for [Mr M] to understand the impact of his behaviour on the children. The Social Worker further reported the children desperately want to go home to their mother but they do not want to see their father therefore it is important for [Ms G] and [Mr M] to understand and acknowledge why that was the case.
[13] Page 174 of Youth Court trial book.
On 25 March 2021, a Departmental worker held a meeting with Ms G in the presence of the Connecting Families social worker. During the meeting the Connecting Families social worker said, “she spoke with Family Violence Intervention Officer from SAPOL with [Ms G’s] permission and found that the history of domestic violence perpetrated by [Mr M] was significant and alarming and quite different from what [Ms G] has been reporting to the Social Worker”.[14] Upon hearing this, Ms G said she had never denied Mr M’s domestic violence and that the account provided by SAPOL was inaccurate and exaggerated. She explained his violent episodes were all influenced by illicit substances and when he was not using drugs he could be an entirely different person.
[14] Page 174 of Youth Court trial book.
On 26 March 2021, Ms G contacted the Department to advise she had been reconsidering Mr M’s involvement in the reunification process, that she was prepared to care for the children herself and ask Mr M to stay away if the Department did not want him involved. However, she further said Mr M had always been a good father and she would always stand by him, adding that he had been trying hard and he should be given opportunity to make things right. Ms G said she did not think he was a perpetrator of domestic violence, and he has never hurt the children.
The parenting capacity assessment
The children were referred by Sid Wagle, the Departmental social worker working with them[15] to the Departmental psychologist, Alicia Crump for an assessment of Ms G’s parenting capacity and recommendations regarding their future care arrangements and support needs.
[15] Mr Wagle worked with the family from July 2020 until December 2021 and co-authored many of the reports referred in these reasons under the heading “Background to the application for the long-term guardianship orders”.
Ms Crump was conferred a Master of Psychology (Clinical) degree in 2018 and first registered with the Psychological Board of Australia in 2017. Ms Crump’s report, dated 17 May 2021, details the history of the Department’s involvement with the family recorded in documentation prepared or obtained by the Departmental workers and contained in the trial book complied for the Youth Court trial (“Ms Crump’s report’). In assessing parenting capacity, in addition to speaking with the Connecting Families social worker, the children’s carer, a teacher and a mental health nurse, Ms Crump interviewed each of the children on 31 March 2021, interviewed Ms G on 13 April 2021, had a brief telephone conversation with Mr M, and observed family contact between Ms G and the children on 27 April 2021.
Ms Crump reported that Ms G apparently ended her romantic relationship with Mr M in August 2019, however, her parenting assessment indicated that they continued to have an enmeshed relationship and were in regular contact. She stated that information she obtained in her assessment indicated the children’s emotional development (and social development in the case of one child) had been stunted by their trauma experiences and the psychological consequence had manifested differently for each child. Two of the children presented with flat affects and depressive symptomology, including suicidal ideation. Other behaviours exhibited by the children suggested they were in constant state of hyper-arousal, which Ms Crump considered was attributable to their exposure to violence. Ms Crump reported the children all held negative perception of Mr M and his past behaviours and had no desire to have a relationship with him. Conversely, the children spoke positively of Ms G and wanted to be returned to her care. Ms Crump noted that while the children were not happy about their care arrangements, their carer held positive views of the children and was insightful regarding their presentations. It was Ms Crump’s opinion that the children needed a caregiver who could provide them with physical, emotional and psychological safety to help them process and recover from their trauma. It was her further opinion that the children’s poor mental health, and emotional and behavioural functioning, reinforced the need for timely decision making regarding their future care arrangements.
Ms Crump was of the opinion Ms G’s:
… acknowledgment of and insight into the child protection concerns was limited. Specifically, [Ms G] minimalised and denied concerns related to domestic violence and substance use, and she did not demonstrate accountability for the child protection concerns. Further, [Ms G] was unable to consider her children’s perspectives, prioritise their needs or provide them with physical safety. [Ms G’s] lack of insight and progress towards addressing the child protection concerns was significant, given the length of time the children have been in out of home care, and [Ms G’s] engagement with numerous support services and DCP. The writer held concerns that the children would be vulnerable to future physical and psychological harm if they were returned to [Ms G’s] care, due to Ms G’s lack of protective capacity and her ongoing relationship with [Mr M] (whether this be platonic or romantic).
The Department’s request to remove the matter out of the Reunification Court
In a Reunification Court report 27 May 2021, the Department reported it remained concerned about Ms G’s lack of progress in addressing the child protection concerns, her lack of insight into the reason for the children’s removal and her parental capacity to keep the children safe from future harm. The Department noted that Ms G had, at times, acknowledged Mr M’s past aggressive behaviour and its impact on her and the children. However, on most occasions she had minimised his behaviour, failed to validate the children’s fear towards him, and had attempted to force the children to mend their relationships with him.
The Department stated that the children required a parent who was able to provide them with attuned care, to support their emotional wellbeing and ongoing development given their experience of domestic violence and trauma. It was reported that Ms G’s lack of acknowledgment around domestic violence posed significant barriers towards Ms G being able to provide appropriate and emotionally attuned care for the children. The Department referred to Ms Crump’s report and noted Ms Crump identified there were serious concerns around Ms G’s lack of insight and accountability towards addressing the child protection concerns, in addition to the concerns in relation to her continued contact with Mr M and her ability to remain separated from him in the future. The Department acknowledged Ms G’s experience as a victim of domestic violence. However, the Department was not convinced about her ability to act protectively and prioritise the children’s safety should they be returned to her care. Accordingly, the Department requested that the matter be referred out of the Reunification Court as it had assessed that long-term care and protection orders were required for the children to ensure their ongoing safety and wellbeing.
The application for a long-term guardianship order
On 4 June 2021, the matter was removed from the Reunification Court. On 19 July 2021, the Chief Executive made an amended application for care and protection orders seeking long-term guardianship orders in relation to the children pursuant to s 53(1)(g) of the Act (“the Chief Executive’s application”), having assessed that reunification of the children into Ms G’s care would not be viable on the grounds that:
(1)There had been a failed attempt at reunification of the children with Ms G.
(2)The relationship between Ms G and Mr M had been characterised by significant domestic violence, to which the children had been exposed, and both Ms G and Mr M lacked insight into the impact that domestic violence had on the children’s safety.
(3)Ms G lacked protective capacity and was unable to demonstrate that she could protect herself or the children.
(4)Secondary to the primary concerns relating to domestic violence was Ms G’s ongoing use of cannabis.
On 30 July 2021, the 12-month interim guardianship orders were revoked and interim guardianship orders were made pending the hearing of the Chief Executive’s application. Further interim guardianship orders were made 15 March 2022, 2 May 2022, and 26 May 2022.
The Youth Court trial of the Chief Executive’s application
Ms G and Mr M opposed the Chief Executive’s application, and each filed a response to the Chief Executive’s application in the Youth Court pursuant to r 11(2) of the Youth Court (Care and Protection) Rules 2018 (SA). The trial of the Chief Executive’s application was heard over five days between January 2022 and May 2022.
The Chief Executive called Mr Wagle and Ms Crump to give evidence.
Ms G who was represented by counsel at the trial, gave evidence and called Dr Don Tustin, a psychologist who authored a parenting capacity progress report dated 7 January 2022. Mr M did not attend or participate in the trial.
The children were represented by a legal practitioner pursuant to s 63(1) of the Act.
The Chief Executive’s contention at trial was that reunification with Mr M was not appropriate because of his history of perpetrating domestic violence and the children’s expressed fear of him. The Chief Executive submitted that Mr M had failed to take steps to address his violent behaviours since the children’s removal, including that he had not engaged in any services to address domestic violence and anger, and had failed to attend drug screening appointments. In his response filed in the Youth Court, Mr M acknowledged “there have been some issues in respect to domestic violence”. He denied that the violence was as profound as the Department alleged, denied he lacked insight and that he was taking steps to address domestic violence and illicit drug use concerns. He said he had been engaging with Tony Tonkin, a social worker/counsellor whose report dated 9 October 2021 is referred to later in these reasons.
The Chief Executive drew the Magistrate’s attention to Mr M having sent, and left, threatening messages to Connecting Families and Departmental workers, including on 26 May 2021 when he left a voice message for the psychologist, Ms Crump, to the effect that her parenting capacity assessment report was biased, and he would “smash her fucking head in”.
The Chief Executive also submitted that reunification with Ms G was not viable as she did not acknowledge the domestic violence and lacked insight into its effects. The Chief Executive submitted the evidence demonstrated Ms G was not capable of protecting herself and the children from the violence as she maintained a relationship with Mr M, and had encouraged the children to have a relationship with him despite being aware they were frightened of him. The Chief Executive said that Ms G had at times acknowledged Mr M’s aggressive and violent behaviour and the impact on her and the children and had engaged with various domestic violence and family relationship programs and services. However, she minimised Mr M’s behaviour, failed to validate the children’s fear and negative views of him, and at times actively tried to force the children to engage with him, despite them vocalising their fear of him. For example, text messages were sent to one or other of the children by Mr M from Ms G’s phone on 9 April 2021, 15 September 2021, and 27 September 2021. On 30 September 2021, Ms G gave letters written by Mr M directly to the children, in circumstances where Mr M was to provide the letters to the Department and the Department would provide them to the children if the content was appropriate and if the children wanted to receive them.
The Chief Executive informed the Magistrate that Ms G was unable to make and sustain the required changes in the timeframe that the children required, and that it was necessary that their long-term care arrangements be secured as a matter of priority.
On 22 August 2022, the Magistrate granted the Chief Executive’s application and made the orders placing the children under the guardianship of the Chief Executive until they each attain the age of 18 years.
The findings made by the Magistrate
The Magistrate noted in her judgment that whilst the Chief Executive referred to matters relating to Ms G’s drug use, it was not pursued at trial as a significant child protection concern. The Magistrate observed that Ms G did not deny smoking cannabis and said she did it for medicinal reasons.
Mr M
The Magistrate found that the Chief Executive had satisfied the evidentiary onus to demonstrate that the orders should be made with respect to Mr M. The Magistrate recorded that the grounds of the application, as they pertain to Mr M, were established by the documents relied on by the Chief Executive alone. Her Honour said that there was cogent and reliable information that comprehensively demonstrated that there was an unacceptable risk of harm to the children in the form of incidents of domestic violence perpetrated by Mr M against Ms G to which the children had been exposed, placing them at risk of physical and psychological harm, and subsequent cumulative harm. Her Honour noted that there was no evidence that demonstrated Mr M recognised the adverse impact of his behaviour on the children’s mental and emotional wellbeing. She noted the evidence demonstrated that any acceptance on his part that the children did not wish to see him or why was superficial. Further, her Honour found the information before the Court revealed he had deliberately tried to coerce the children into seeing him despite being told of their clear statements that they do not want to have contact with him. Her Honour said she did not attach any weight to statements in Mr Tonkin’s report about any change in Mr M’s behaviour or Mr M accepting that his behaviour had an adverse effect on the children.
Ms G
The Magistrate stated that Ms G’s position was that the children were safe from any risk of harm posed by Mr M if Mr M did not reside with her and the children. Further, Ms G contended that as the children were old enough to articulate that they wished to return home to her, the priorities in the Act were met by them being returned to her care. The Magistrate identified that considerations of risk of harm to the children in Ms G’s care lie with her acknowledgement of and insight into domestic violence and illicit substance use. The Magistrate recorded that Ms Crump, in evidence maintained the opinions that she had expressed in her parenting capacity report. In particular, the Magistrate referred to Ms Crump’s opinion regarding Ms G’s limited acknowledgment of and insight into the child protection concerns. Her Honour also referred to Ms Crumps’ view that Ms G minimalised and denied concerns related to domestic violence and illicit substance use, did not demonstrate accountability for the child protection concerns and was unable to consider her children’s perspectives, prioritise their needs or provide them with physical safety. Her Honour noted Ms Crump held concerns that the children would be vulnerable to future physical and psychological harm if they were returned to Ms G’s care, due to Ms G’s lack of protective capacity and her ongoing relationship with Mr M.

The Magistrate formed the view, having heard Ms G’s evidence, that she was not being truthful about the extent of violence perpetrated by Mr M and had tried to minimise and downplay it. For example, her Honour said Ms G’s evidence about the events that occurred in November 2019 was not convincing and did not accord with what she appeared to have reported to SAPOL. She said Ms G’s description of the event, which was to the effect it was a heated argument to which she and Mr M had both contributed and during which the glass door was accidentally smashed, did not have the ring of truth about it.
The Magistrate referred to Ms G’s contentions that the Connecting Families social worker had decided to include Mr M into the counselling process so that they could work on parenting skills together. Ms G alleged that the Department then used the fact that she and Mr M continued to have an ongoing relationship in this context as a reason for having the process removed from the reunification stream and to seek long term guardianship orders. Mr Wagle, gave evidence that whilst the Department’s position was that Ms G had been told that Mr M was not being considered for reunification, and that her continued support and contact with him would impede the children being reunified into her care, it was aware of Connecting Families’ decision to involve Mr M. Mr Wagle explained that this was in circumstances described by the Connecting Families social worker in her report dated 26 June 2021 as follows:
It became evident that [Ms G] and [Mr M] wanted to work together to resolve the issues and at this point Connecting Families felt that [Mr M] should be involved and supported to begin to make the necessary changes. It was more honest to commence work with [Mr M] than to continue to allow [Ms G] to hide her relationship with him and pretend to the DCP that he was no longer in her life. Connecting Families felt this approach was more likely to provide long term safety for the children.
Mr Wagle gave evidence that it had been made plain to Ms G and Mr M that Mr M’s participation in the Connecting Families counselling was not for the purposes of working towards reunification with the children, and that Mr M needed to stay away in order for the children could go back to their mother. Mr Wagle denied Ms G’s assertion that the Department wanted her and Mr M to work together to bring the children back home. Mr Wagle said he had told Ms G “that’s not true, we have been very clear that we always plan to reunify the children with you, not involving [Mr M]”.
The Magistrate accepted Mr Wagle’s evidence and noted:[16]
… The very purpose of the Department referring Ms G to Connecting Families was, in the social worker’s words, ‘to support [her] to understand the effects of domestic violence on her children and support her to understand the risks to her family from [Mr M]. The DCP were worried that [Ms G] continually minimised the children’s experiences and she was not prepared to remove herself totally from the relationship, from [Mr M], this created difficulty for the DCP attempting to progress with any reunification plans.’
and:[17]
… it is difficult to comprehend how Ms G could have thought that any form of relationship [with Mr M] was acceptable to the Department, much less that the purpose of his being involved was to include possible reunification with him.
[16] [2022] SAYC 38 at [65].
[17] [2022] SAYC 38 at [66].
Tony Tonkin’s report
Before discussing the report of Tony Tonkin relied on by Ms G, the Connecting Families[18] social worker’s report dated 26 June 2021 needs to be considered further. The report details that following referral from the Department, the Connecting Families social worker focused on supporting Ms G to understand the effects of domestic violence on her children and helping her to understand the risks to her family from Mr M. The Connecting Families social worker referred to some of Mr M’s behaviours being so normalised within the family that Ms G struggled to see the perspective of professionals, SAPOL, the Department and Connecting Families.
[18] Connecting Families is a private care and protection consultancy.
The Connecting Families social worker described the children having been “resolutely clear they wanted nothing to do with” Mr M, they wanted their mother to stop pushing them to connect with their father and they blamed him for their being removed from Ms G’s care. The children told the social worker many stories about how Mr M was unreasonable, angry, aggressive, and mean.[19]
[19] Page 117 of Youth Court trial book.
In June 2021, the Connecting Families social worker explained to Ms G that once the Department made the decision to no longer work toward reunification and were seeking long term guardianship orders, Connecting Families could no longer work with the family. Ms G said in response she was considering ways of ensuring Mr M had no contact with the children and explained she was developing greater awareness of the toxicity between herself and Mr M. The Connecting Families social worker concluded the report stating Connecting Families would be willing to work with Ms G “now that she has made clear decisions about not involving” Mr M in the lives of their children.
A few months after the Connecting Families social worker’s report, Mr Tonkin provided his report dated 9 October 2021. Mr Tonkin, who was not called to give evidence during the Youth Court trial, reported that he had met with Ms G and Mr M each separately on three occasions and with them together on four occasions. Mr Tonkin stated he is an Accredited Mental Health Social Worker who worked as a Lifeline telephone counsellor from 1991 to 1996, became a paid staff member (I infer he meant with Lifeline) and managed the training program. He then worked as a therapeutic counsellor with Anglicare from 1997 to 2003 and commenced private practice in 2003.
Mr Tonkin stated that there appeared to be substantial information which supported the Department’s view that Mr M was violent and abusive and therefore any relationship Ms G chose to have with him would be detrimental to the children’s wellbeing. He referred to the fact police had been called to the family home after an eruption between Mr M and Ms G and to there being “significant acknowledgement that both parents had been drug users, and the children were clear about the relationship they wished to have with their father”. He stated from the beginning he supported the notion that Mr M needed to be removed “from the mother and the children in order for the children to be returned to” Ms G’s care. He explained that his support was based on the Department’s assessment of Mr M’s and Ms G’s tendency to minimise the conflict and its impact on the children. He further explained that having worked in family violence for 30 years he “is aware that the minimisation of events is a big red flag” and “it is also important to acknowledge the voices of children”.[20]
[20] Page 258 of the Youth Court trial book.
Mr Tonkin reported that his counselling work with Mr M and Ms G had produced a clear understanding of the relationship dynamics. He said that highlighting their negative behaviours and acknowledging the impact those behaviours have had on the children “has brought about significant change”. He asserted Ms G and Mr M both acknowledged that a key trigger to their behaviours was the financial strain placed on them through their drug use, and that even though drugs were no longer part of their life they needed to find better ways to communicate with each other. Mr Tonkin expressed the view that whilst conflict with Mr M does not necessarily breed fear in Ms G, it does in the children. He said Ms G and Mr M had acknowledged this, that it has had an adverse effect on the children, and that had it not been for the invention of the Department they may never have addressed these issues. Mr Tonkin said he was “adequately satisfied that the conflictual behaviour is being addressed but has not been tested because the children are not in their care”, that Ms G and Mr M have improved their relationship, have demonstrated genuine care and love for each other and that it would be helpful for the children to witness the change in their parents.
Mr Tonkin considered that the children will suffer further damage if they remain in State care and “to return them to their parents who can love them and nurture them appropriately will provide them with a future full of hope and potential”. Mr Tonkin referred to Ms G and Mr M having sent conflicting messages to the Department concerning their relationship. He said that they wanted to placate the Department and that they had not been truthful about their relationship for fear the children would not be returned to them. He also reported that Ms G and Mr M “clearly want their relationship to be successful and in turn want their children to witness what a successful relationship can look like … this is a worthy objective which needs to be supported”.
Dr Don Tustin’s report and evidence
Dr Don Tustin obtained a master’s degree in psychology in 1973 and has been a registered psychologist since 1977. Dr Tustin, who had been in private practice since 2007, stated he has “expertise in the assessment and treatment of mental health difficulties of parents and children, especially in families where parents are separated or there is a childhood disorder or a parental mental illness or a child protection issue”.
Dr Tustin interviewed Ms G on two occasions in late 2021. He interviewed the children together on one occasion in December 2021 and did not speak to Mr M for the purposes of his assessment.
Dr Tustin said in his report 7 January 2022 that this was a matter “where impressions gained from reading documents and from interviewing a parent are very different”. He stated there needed to be a judicial determination of how much credit to give the differing sources of information.
Dr Tustin reported that he administered a checklist to Ms G for each child. The checklist is used by Dr Tustin to assess specific impacts on children who witness substance abuse. He also administered the checklist to the children during his interview with them. He said one of the reasons he administered the checklist to the children was to determine whether the children wanted to participate in joint therapy with Ms G. He stated all children expressed a desire to participate in healing therapy with their mother, but not their father.
Mr Tustin reported that Ms G acknowledged the children had been traumatised by their exposure to domestic violence, and that this together with Mr M’s illicit substance use was why she ended the relationship with Mr M in August 2020.
Dr Tustin stated it was clear that in the past Ms G had prioritised her own adult relationship over the wellbeing of her children. He stated that Ms G had told him that she recognised the adverse impact of allowing her children to be exposed to illicit substance use and to domestic violence. He suggested that the Youth Court might consider issuing a supervision order, the children be returned to Ms G’s care, and Ms G makes undertakings to continue to address topics identified in his report.
Dr Tustin gave evidence that Ms G told him she would not involve Mr M in parenting the children. In response to the concern raised by the Department that Ms G encouraged the children to reconcile with Mr M, Ms G told Dr Tustin that the two older children were old enough to make their own decisions about seeing Mr M and that she would respect those decisions. Ms G told Dr Tustin in response to the Department’s further concern that she had been too tolerant of Mr M’s harsh parenting style, that she acknowledged that he had used excessively harsh methods of discipline, that she would no longer permit him to engage in discipline of the children and she will protect them from his anger.
In his second report dated 4 March 2022, following a further consultation with Ms G, Dr Tustin reported that Ms G raised the topic of her prioritising the adult relationship discussed in his 7 February 2022 report and “made a correction that the relationship with the children’s father was supportive for many years, as there was no domestic violence.” Dr Tustin said Ms G acknowledged that the Department had grounds for concern that she remained in the relationship for too long after the domestic violence started. Ms G told Dr Tustin she tried to leave the relationship earlier but could not find alternative accommodation. She also told him she now listens to what the older children say about meeting their father and she respects their wishes.
Ms G and Mr M’s relationship
The matters recorded in Mr Tonkin’s report are clearly to the effect that Ms G and Mr M are in a relationship as a couple and that they working to improve their relationship for the children’s sake. It should be noted in this regard that in June 2021 Ms G told the Connecting Families social worker she had made the decision not to involve Mr M in the lives of their children, and told Dr Tustin she had separated from Mr M in August 2020.
The Magistrate said she had difficulty accepting as accurate what Ms G told Dr Tustin in November 2021, a few weeks after the date of Mr Tonkin’s report, regarding her relationship with Mr M. Dr Tustin’s January 2022 report conveys the very clear impression that Ms G told him that she had ended her relationship with Mr M, having finally accepted that he would not change.
The evidence supports the Magistrate’s conclusion that it was unlikely Ms G and Mr M had ended their relationship. It is clear from the transcript of the Youth Court trial that Ms G was unable to explain the change in her attitude towards Mr M as detailed in Mr Tustin’s report, compared with that detailed in Mr Tonkin’s report.
The evidence also supports the Magistrate’s conclusion that Mr Tonkin’s report confirms that Ms G and Mr M have attempted to convince the children they need not be scared of Mr M, and that they will parent them as a couple. The Magistrate referred to the letter Mr M wrote to the children that included statements that he and Ms G are best friends, they were working together to get the children home, they have done courses and counselling, and that the children did not need to be scared of him. As stated above, letters written by Mr M were given directly to the children by Ms G even though both she and Mr M knew that the Department would only agree to Mr M providing the children with letters if they went through Departmental workers. The Magistrate described how Ms G was observed during a contact meeting in September 2021 telling one of the children that they needed to accept Mr M and give him a chance and that participating in counselling was the only way to go home. Ms G is also reported as having told the children that if they did not agree to family counselling they would end up in foster care. For example, Ms G sent a text message to one of the children saying:[21]
… they tell me nothing will change until you guys start mending with Dad. So if it takes months years or whatever it all relies on this. Doesn’t matter if he lives with us or not.
[21] Page 53 of the Youth Court trial book.
Ms G agreed in her evidence that Mr M had used her phone to send text messages to the children in September 2021. The Magistrate correctly summarised that Ms G told the Court that she never had problems staying away from Mr M, but that she was of the belief that the children should have contact with their father and resolve their issues with him.
As observed by the Magistrate, it is difficult to accept that Ms G would have changed her position about the nature of her relationship with Mr M from that described by Mr Tonkin, particularly having regard to her evidence that she believed the children should resolve their issues with Mr M.
The Magistrate preferred the evidence of Ms Crump where Ms Crump’s opinion diverged from opinions expressed by Mr Tonkin and Dr Tustin. In this regard, her Honour preferred the opinion of Ms Crump as to whether Ms G had demonstrated some insight. Ms Crump said Ms G was yet to demonstrate a sufficient degree of insight or protective capacity or have the capacity for change at the time of her assessment. Ms Crump stated in her evidence that she held concerns that the intervention orders had not protected Ms G and the children “most likely due to Ms G’s vulnerability and the power imbalance in the relationship” with Mr M. Ms Crump observed that Ms G had had two years to address child protection concerns in the hope that the children could be reunified with her, but she did not have the capacity for change in the time the children needed and, accordingly, a supervision order would not be in the children’s best interests.
The evidence before the Magistrate supported a finding that the violence in the relationship between Ms G and Mr M was not confined to arguments or conflict that had been addressed by counselling. Her Honour also correctly found that the evidence did not support a finding that the risk Mr M posed to Ms G and the children’s safety and wellbeing had been addressed.
The evidence supports the finding that Ms G and Mr M’s lives are, and will continue to be, intertwined, even if they are not in a romantic relationship, and that they have continued to pursue an outcome of Mr M having a relationship with the children. Accordingly, the Magistrate concluded correctly that the evidence demonstrated that Ms G’s insight into the concerns related to domestic violence remained limited. Further, her recognition and assessment of the risk to her and the children’s safety posed by Mr M, and her ability to protect the children from harm remains limited. The evidence available supported her preferring the evidence of Ms Crump to that of Dr Tustin. Dr Tustin told the Magistrate that his assessment was incomplete as he ran out of time to interview Ms G on all the relevant matters. I query whether Dr Tustin was provided with Mr Tonkin’s report which portrays a diametrically opposed relationship between Ms G and Mr M to the relationship he reported on.
Having regard to all the evidence, the Magistrate concluded that the Chief Executive had established the grounds of the application with respect to Ms G. The Magistrate stated that, in finding it was appropriate to make the long‑term guardianship orders, she had considered the information about the children’s presentation and mental wellbeing, as well as the children’s views. The Magistrate noted what the children told her during her meeting with them was consistent with what they had told their legal practitioner and Departmental workers, that is, that they love their mother and want to go home to her and that they do not see any reason why that cannot occur.
The submissions on appeal
Fresh evidence
Following the hearing of the appeal, Ms G forwarded an email attaching Dr Tustin’s second report and a document titled “Mother’s Further Submissions” dated 2 June 2022. The “Mother’s Further Submissions” document does not appear to have been tendered in the trial. I note it was forwarded by Ms G’s solicitors to the Youth Court and the Chief Executive’s solicitors following the trial. The Chief Executive does not take express objection to Mr G seeking to rely on the document on appeal, but notes that no application for fresh evidence to be received by the Court has been made. As the Full Court said in M, L v Minister for Education and Child Development in relation to the admission of fresh evidence on an appeal by way of rehearing:[22]
The appeal provided for by s 22 of the Youth Court Act is by way of a rehearing. Accordingly, this Court has the power to receive further evidence. That power is not confined by the restrictive requirement for the admission of fresh evidence on an application for a new trial.[23] In the exercise of that discretion, the critical factor is the subject matter of the proceedings.[24] For that reason, the need for finality in litigation does not necessarily apply especially in cases that concern the welfare of children.[25] The discretion is ‘more ample’.[26] Importantly, further evidence can also be received to buttress findings already made.[27]
[22] [2018] SASCFC 131 at [25].
[23] CDJ v VAJ (No 2) (1998) 197 CLR 172.
[24] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [104].
[25] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [104].
[26] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [108].
[27] CDJ v VAJ (No 2) (1998) 197 CLR 172 at [109].

Accordingly, I have received the document “Mother’s Further Submissions” as Ms G’s further submissions on her appeal.
Ground 1 – Insufficient weight placed by the Magistrate
Ms G’s first ground of appeal is that the Magistrate did not give due weight to the children's wishes. Ms G submitted:[28]
MS G:… the children have always wanted to come home, and they have been honest in their representation of how they feel about their father, under the understanding that under the age of 14 they are obliged to have some form of contact with their father, but with the department's help they don't have to be forced into having any form of relationship with their father.
HER HONOUR: What do you mean under 14 they have to have a relationship?
MS G:Under the Family Law Act children are obliged to be encouraged to have contact with both their biological parents under the Family Law Act 1975.
[28] Appeal transcript, T28.25-27.
It is of note that s 69ZK of the Family Law Act 1975 (Cth) (“the Family Law Act”) specifically prohibits (except in specified circumstances) the making of an order under the Family Law Act in relation to a child who is under the care of a person under a child welfare law. The Act under which the orders were made is a “child welfare law” for the purposes of s 69ZK of the Family Law Act.
A complaint about the giving of insufficient or excessive weight to a particular issue or piece of evidence does not and cannot justify interference by an appeal court unless the decision is plainly unjust and could not have reasonably been reached.[29]
[29] R v Lutze (2014) 121 SASR 144, [45]-[47] (Vanstone and Parker JJ).
I have read the transcript of the Magistrate’s meeting with the children. The Magistrate’s judgment clearly records that the children have consistently expressed to their lawyer and to the Court their wish to go home to their mother.[30]
[30] [2022] SAYC 38 at [39].
The Act, in promoting the importance of hearing and taking into account children and young persons’ views, recognises, through the operation of the paramount consideration under s 7, they cannot always act in their own best interests, nor can they be responsible for their own safety.
The children’s legal practitioner during the Youth Court trial acknowledged the children’s strongly expressed views and acted in accordance with her own view of the best interests of the children and supported the Chief Executive’s application.
The Magistrate considered the wishes of the children and in making the long‑term guardianship orders gave greater weight to their protection from the risk of harm.
This ground of appeal is not made out as no appellable error has been demonstrated.
Grounds 2 and 3
Ground 2 – The Magistrate erred in failing to consider that leaving the children in the custody of the Chief Executive was the least preferred option under the Act nor could the Chief Executive guarantee another placement would be free of risk and psychological harm
Ground 3 – The Magistrate erred in taking into account the considerable and emotional harm the children have suffered and the irreversible to the children’s emotional wellbeing in care
As grounds 2 and 3 concern Ms G’s complaints about harm she alleges the children have suffered while in State care, I will consider them together.
Ms G submitted in support of these grounds that the current placement of the children was lacking in a nurturing primary caregiver, did not provide any pre‑existing care relationship and was staffed by professional staff with no love or affection.
Ms G contended that one child had not attended school for two terms and the Department had failed in its duty of care. She submitted the Department should have undertaken a reasoning process setting out all of the positive and negative implications of any decision for the children in its care. She argued that the Magistrate also could have made several decisions and considered the pros and cons of the proposed placement for the children in terms of ensuring “a safe, nurturing, stable, and secure environment”. Ms G contended the Magistrate did not consider how the children’s psychological and emotional needs were managed following their removal from her care.
Ms G referred to the Magistrate’s reasoning at [64] to [67] regarding Ms G’s confusion regarding what the Department wanted. She asserted this stemmed from the initial claims by a Departmental worker that the children should build a positive relationship with their father to develop the best possible outcome.
Ms G argued that the Magistrate did not correctly apply the Act and failed to take into account the risk of psychological harm to the children whilst in the Department’s care.
As submitted by the Chief Executive, the regime of the Act is structured on early action and intervention to protect children who are at risk of harm. Mandatory reporting, investigation, and assessment by the Chief Executive and ultimately the making of an application pursuant to s 50(3) seeking orders under s 53 provide the framework to achieve the goal of protecting children who are at risk.
As detailed at the commencement of these reasons, s 7 of the Act provides that the paramount consideration in the administration, operation, and enforcement of the Act must always be to ensure that children and young people are protected from harm. The principle in s 7 is not displaced[31] by s 11(1)(b) which prescribes that the preferred option is to place a child or young person with a person with whom they have an existing relationship, or by s 8(3) which provides it is desirable to maintain connection of children and young people with their biological family. The Act does not state that placement with the Chief Executive is the least preferred option. The paramount consideration is always the protection of children from harm. As submitted by the Chief Executive, s 53 of the Act only requires that the Youth Court, in determining an application under the Act, be “satisfied that it is appropriate” to make one or more orders prescribed.
[31] Children and Young People (Safety) Act 2017 (SA) s 11(3).
Ms G has not identified appellable error. Grounds 2 and 3 are complaints regarding the weight the Magistrate gave to the evidence of risk of harm that the children would likely be exposed to if they remained in Ms G’s care, as against the potential for harm they may suffer in the Chief Executive’s care as a result of being placed in care.
By her submissions, Ms G is asking this Court to reach a different conclusion to that reached by the Magistrate as to the weight placed on the evidence of risk of harm in either scenario. There was no evidence before the Magistrate regarding the considerable and irreversible emotional harm Ms G alleges the children have suffered in State care, or that placements by the Chief Executive would result in the children suffering psychological harm.
The evidence given in the Chief Executive’s case before the Magistrate was that the children were settled in their placement.[32] The evidence of Ms Crump was that the risks to the children if an order was not made was not comparable to any risk as a result of placement instability.[33]
[32] T157.
[33] T198.
The Magistrate correctly and appropriately identified and applied the relevant sections of the Act applicable to the determination of the Chief Executive’s application. Her Honour’s reasons for making the order are detailed and her consideration of the evidence correctly focussed on the risk of harm to the children and how to keep the children safe from harm.
Grounds 2 and 3 are not made out.
Ground 4 – The Magistrate put undue weight on past history and misrepresented facts by the Department’s evidence
Ms G said in support of ground 4 that Ms Crump’s evidence was based only on historical information. Ms G also asserted the risk of harm to the children assessment was based on false and misleading facts and that she never refused to work with domestic violence services. Ms G contended that while the Department continues to assert that the children were subjected to violence their entire lives, the children say they were not physically abused.
Ms G argued that the Magistrate chose not to consider her evidence as to the inconsistencies in the reports prepared by Departmental workers and the statements of Departmental workers vilifying her, which she argued adversely affected their credibility. Ms G said that Mr Tonkin’s report supports this, and his opinion was not accepted. Ms G asserted that the Magistrate showed an unwillingness to listen to alternative points of view and demonstrated a lack of regard for the views of others, including Dr Tustin and Mr Tonkin. She asserted the Magistrate’s opinion was biased and the multiple inconsistencies in the Department’s evidence were not considered, nor did the Magistrate consider the transcripts of the Reunification Court hearings. I point out the Magistrate could not have regard to the Reunification Court transcripts due to the Youth Court protocol regarding the use of matters disclosed and the transcript taken in the Reunification Court.
Ms G included in her submissions a list of services she said she engaged prior to the children’s removal.
In oral submissions, Ms G said she considered the Magistrate made an error relying on Ms Crump’s parenting capacity report, not taking into account the reports of Dr Tustin and Mr Tonkin. I point out, again, that Mr Tonkin was not called to give evidence by Ms G and only limited weight can be given to his written report in circumstances where he was not available for cross-examination.
This ground of appeal is also a complaint as to the weight given by the Magistrate to the matters complained of by Ms G. As stated above, the question of weight was a matter for the Magistrate and cannot justify interference by an appeal court unless the decision is plainly unjust and could not have reasonably been reached.
As submitted by the Chief Executive, the concern in relation to past history was that Ms G minimised the aggression and domestic violence and the impact on the children. Further, the Department said that against this background, Ms G was not able to demonstrate that she had appropriate protective capacity to protect the children from the risk of harm presented by her relationship with Mr M.
The decision arrived at by the Magistrate, having considered the evidence including the parenting capacity opinions, was clearly open to her. So, too, was it open to prefer the evidence of Ms Crump to that of Dr Tustin and the report of Mr Tonkin.
The submissions of the children’s legal representative
Finally, counsel representing the children supported the submissions made by the Chief Executive on appeal. It was submitted that there was no evidence before the Court to suggest that the children were not thriving in their placement, noting of course that they miss their mother and want to return home. It was submitted there is simply no evidence to suggest that they have been being damaged physically or mentally in their placement. Counsel pointed out that the children expressed their views to their representative during the trial and to the Magistrate. It was contended the key child protection issue was that of domestic violence, what Ms G’s understanding of that was, what it meant for the children in the past, and what their future would be like if their parents continued to have some form of contact and/or relationship. It was pointed out that the veracity of Ms G’s evidence and her position was clearly questioned during the trial in relation to the many differing versions about what had transpired in her relationship and the occurrence of domestic violence. Counsel referred to the following evidence given by Ms Crump:[34]
It is very important to acknowledge that [Ms G] is a victim of domestic violence and she hasn’t been able to protect her children because of that. It’s not that she doesn’t have a desire to protect her children. Because of the nature of domestic violence and the risk it presents to herself she hasn’t been able to do that because she is unable to protect herself, unfortunately.
[34] T215.33-216.2.
It was submitted that the Magistrate rejected Ms G’s credit and found that she had given conflicting account about different matters, including her relationship and what had occurred in it and the various accounts she had given Departmental workers, Mr Tonkin, and Dr Tustin. To this I would add the account she also gave the Connecting Families social worker.
Counsel for the children submitted that the children have improved whilst in State care because they are receiving the assistance they need and that Ms G’s allegations regarding their lack of care are unsubstantiated.[35] Counsel pointed out that the children’s desire to return home to their mother has been constant, but what has changed is their comments, for example, to the Magistrate to the effect, “We’ll even live with father if we have to”. It was submitted if there is no change in the relationship between Ms G and Mr M then effectively the children are being sent back to an unsafe place based on the Magistrate’s findings. It was submitted that the children told the Magistrate that if they had a choice, they did not want to see Mr M. It was argued Ms G knows her children do not want to see their father, that they are frightened of him, that his presence in the home and the prospect of resuming some form of relationship with him worries them. It was contended that despite this, Ms G does not want to, or is incapable of acknowledging those matters and that is why the child representative at trial was of, and continues to be of, the view that Ms G did not have sufficient insight and did not have protective capacity and as a result the children were at risk.
[35] Appeal transcript, T55-56.
Conclusion
Ms G has not demonstrated any appellable error of fact or law, nor has she demonstrated any relevant error in the exercise of the Magistrate’s discretion to make the orders. On my review of the evidence, the decision to make the orders was clearly correct.
I dismiss the appeal.
In conclusion, I note s 55 of the Act provides Ms G, as a party to proceedings, may apply for variation, revocation, or discharging of an order made under s 53 if there is a significant change in circumstances.[36]
[36] M, L v Minister for Education and Child Development [2018] SASCFC 131, [23] (Kourakis CJ, Stanley and Lovell JJ).