JLS v Chief Executive of the Department for Child Protection

[2022] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS

[2022] SASC 18

Judgment of the Honourable President Livesey  (ex tempore)

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

EVIDENCE - ADMISSIBILITY - GENERAL PRINCIPLES - CONDITIONALLY ADMITTED EVIDENCE

By originating application dated 21 December 2021, the applicant Mother sought orders that the Court invoke its parens patriae jurisdiction in respect of the applicant’s child, H.  On 21 January 2021, the applicant’s application was confined to two questions for determination by the Court: first, whether the child should live permanently in Queensland with his Father ahead of the determination by the Youth Court of the Department’s amended application for care and protection orders, and second, whether there should be contact with the child’s mother and family.  The application was heard over a number of days before judgment was reserved on 8 February 2022. 

By interlocutory application dated 11 February 2022, the respondent sought to reopen its case and lead further evidence of events which occurred after judgment was reserved on the question of the applicant's preparedness to engage in reunification therapy.

By interlocutory application dated 21 February 2022, the applicant sought orders including an order preventing the removal of the child from the State of South Australia, modifying the reunification process, appointing a person to conduct a forensic audit of the Department’s records, and removing the child from his current residential facility.

Held (per Livesey P):

Allowing the respondent’s application dated 11 February 2022—

1.The affidavit evidence and email correspondence tendered by the respondent is admitted on the condition that the applicant’s email correspondence and further evidence is also admitted.

Dismissing the applicant’s application dated 21 February 2022

1.The application is dismissed with no orders as to costs.

Allowing the parens patriae application dated 21 December 2021—

1.The Department is restrained from permanently relocating the child, H, to Queensland for the purposes of full-time residence with the Father pending the further order of this Court.

2.The Department is directed to urgently facilitate reunification therapy with a qualified expert in family therapy involving the child and his parents, so as to endeavour to quickly restore weekly face-to-face contact between the applicant Mother and the child, as well as between the other members of the maternal family being the maternal grandparents and elder brother and the child, within six weeks.  If necessary, an expert with expertise in child trauma must also be consulted to assist the Department and family therapist.

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS
[2022] SASC 18

Civil

LIVESEY P:

1. In this matter I have been hearing an application made in the parens patriae jurisdiction of this Court directed to two questions:

2. First, whether the child, H, should live permanently in Queensland with his father ahead of the determination by the Youth Court of the amended application for care and protection, which is dated 13 September 2021 and, two, as a corollary, whether there should be contact with the child’s mother and family.

3. This matter has proceeded over six days to the point where judgment was reserved on 8 February 2022.

4. On 15 February 2022, I heard argument on an application made by the respondent dated 11 February 2022 seeking to reopen the respondent’s case and to lead further evidence of events which occurred after I reserved judgment.

5. At that time, the applicant Mother had failed to attend a session directed to the reunification process involving the child and his parents arranged for 11 February 2022 with an expert arranged by the Department.

6. The Youth Court trial regarding the Department’s application for a six-month extension of a Guardianship Order commenced on 14 February 2022 but has adjourned for further hearings, presently scheduled for 2, 3, 22 and 23 March 2022.  It may be that further hearing dates will be required.

7. During the course of argument, the Department narrowed its application to limit the material tendered to that which indicated the applicant’s preparedness to engage in reunification therapy.

8. At that stage, another appointment for the applicant with the therapist had been scheduled for Saturday, 19 February 2022 between 11.00 am and 1.00 pm.  I adjourned to today so that I could give my ruling on the Department’s application.

9. On Friday, 18 February 2022, email correspondence provided by the applicant shows that the appointment scheduled for Saturday was cancelled because the therapist was required to isolate due to COVID-19.  The appointment has been rescheduled for a date after 28 February 2022, tentatively for 4 March 2022, but I understand from what the applicant has said today that there may be some uncertainty about that.

10. Earlier today I received further written submissions and an urgent application from the applicant.  By that application, the applicant seeks orders to the following effect:

    1.Preventing the removal of the child from the State of South Australia.

    2.That a supervisor be appointed to oversee reunification of the child with the applicant and her family, ensuring that there are at least two contact visits each week with the applicant Mother.

    3.Ancillary orders concerning further and better particulars, discovery and the appointment of a person to conduct a forensic audit of the Department's records.

    4.That the child be removed from the present residential facility where he is residing.

    5.That the Department pay costs.

11. I have heard argument on that application by the applicant and by the respondent.  In essence, the applicant contends that there have been new, exceptional circumstances and it is necessary that the orders sought be made.  The Department, says that, to a significant extent, the orders sought mirror earlier orders which were unsuccessfully sought at the time I ruled on the parens patriae application.

12. In my view, the orders which are sought go well beyond what I would regard as an appropriate exercise of my power within the parens patriae jurisdiction in this matter.  In any event, but as importantly, it is necessary that this matter be brought to a close without further evidence, argument or delay.

13. On the respondent's application dated 11 February 2022, I will admit the affidavit evidence and email correspondence tendered by the respondent on the condition that the applicant's email correspondence and further evidence is also admitted. I have admitted those today as Exhibits R42 through to A45.

14. On the applicant's application dated 21 February 2022, I order that that application be dismissed with no orders as to costs.

15. On the parens patriae application dated 21 December 2021, I have determined to make the following orders in the interests of providing the parties with some certainty, but in the knowledge that I have not yet been able to provide detailed reasons which I will supply as soon as my obligations with the Court of Appeal permit. I order:

    1.That the Department is restrained from permanently relocating the child, H, to Queensland for the purposes of full-time residence with the Father pending further order of this Court.

    2.That the Department is directed to urgently facilitate reunification therapy with a qualified expert in family therapy involving the child and his parents, so as to endeavour to quickly restore weekly face-to-face contact between the applicant Mother and the child, as well as between the other members of the maternal family being the maternal grandparents and elder brother and the child, within six weeks.  If necessary, an expert with expertise in child trauma must also be consulted to assist the Department and family therapist.

    3.This matter is adjourned for further hearing to Tuesday, 12 April 2022 at 2.00 pm with two and a half hours set aside.

    4.Any further evidence or submissions must be filed and served by Tuesday, 5 April 2022 at 4.00 pm.

    5. Finally, the parties will have liberty to apply.