JS v Chief Executive of the Department for Child Protection

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2023] SASC 174
Judgment of the Honourable Justice McIntyre
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 – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT
The applicant, JS, made an application to the Supreme Court in the parens patriae jurisdiction seeking orders that the Chief Executive of the Department for Child Protection (‘the Chief Executive’) not be permitted to remove her son, HS, from the State. Orders were made on 29 November 2022 and recast on 1 December 2022 (‘the orders’) in relation to this application. JS then filed an interlocutory application seeking further orders. This interlocutory application was subsequently ordered to be treated as an originating application.
The respondent, the Chief Executive, has brought two applications before this Court. The first application (FDN 19) seeks summary judgment, contending that there is no reasonable basis for the action. The second application (FDN 5) is that in the alternative of the first, that the orders originally made in the related proceedings be amended. The applicant filed an interlocutory application (FDN 4) seeking to expand the scope of her originating application.
Held:
1.JS’s application (FDN 4) seeks relief outside the scope of the Court's parens patriae jurisdiction in this matter and is dismissed.
2.There is no reasonable basis for the relief sought by JS. There have been significant changes in circumstances since the orders were made; as such it is no longer appropriate for this Court to intervene, nor to make any further orders in the parens patriae jurisdiction. Consequently, the application seeking summary judgment (FDN 19) is granted.

Uniform Civil Rules 2020 (SA) rr 143.1, 143.2; Children and Young People (Safety) Act 2017 (SA) ss 41, 50, referred to.
JLS v Chief Executive of the Department for Child Protection [2022] SASC 18; Chief Executive of the Department for Child Protection and JS and SO and HO-S [2022] SAYC 45; Banks (A pseudonym) v Chief Executive of the Department for Child Protection [2023] SASC 39; Banks (A pseudonym) v Chief Executive of the Department for Child Protection [2023] SASCA 102; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (2020) 137 SASR 117; Spencer v Commonwealth of Australia (2010) 241 CLR 118, considered.

JS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2023] SASC 174
Civil: Application

McINTYRE J: The applicant, JS, formally commenced these proceedings in the parens patriae jurisdiction of this Court in relation to her son by filing an interlocutory application in related proceedings. This interlocutory application was subsequently ordered to be treated as an originating application and now appears as FDN 1 in these proceedings.
This judgment relates to three interlocutory applications. In one, JS seeks a range of orders expanding the scope of her original application.[1] In the other two the respondent, the Chief Executive of the Department of Child Protection (‘Chief Executive’), seeks summary judgment under rr143.1 or 143.2 Uniform Civil Rules 2020 (SA) (‘the UCR’) [2] and, in the alternative, an amendment of orders made by Livesey P on 1 December 2022.[3]
[1]    FDN 1.
[2]    FDN 19.
[3]    FDN 5.
Background
On 2 June 2021 the Department for Child Protection (‘the Department’) removed JS’s son (HS) from her care under s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘the CYPS Act’). Prior to this he had lived in her primary care in South Australia under Federal Circuit Court orders made in December 2015. HS had limited contact with his father, who resides in Queensland.
The Chief Executive applied to the Youth Court under s 50 of the CYPS Act in June 2021 for an order that HS be placed under her guardianship for a period of three months. The Youth Court made an interim order in those terms shortly thereafter. JS then filed an application in the Supreme Court for a writ of habeas corpus. That application was summarily dismissed by Kourakis CJ on 30 August 2021. A subsequent application for leave to appeal to the Court of Appeal was dismissed on 16 December 2021.
HS was transitioned into residential care placement in Adelaide and, on 13 September 2021, the Chief Executive amended the guardianship order application in the Youth Court to seek that HS be placed under her guardianship for a period of six months. It was the Chief Executive’s intention to explore permanently relocating HS to Queensland for the purpose of reunifying him with his father. HS was at the time refusing to have any contact with JS.
JS made an application to the Supreme Court in the parens patriae jurisdiction seeking orders, amongst others, that the Chief Executive not be permitted to remove HS from the State.[4] On 23 December 2021 Livesey P expressed an intention to appoint a litigation guardian for HS. Since that time HS has been represented by a litigation guardian from the Legal Services Commission of South Australia (‘child representative’).
[4] CIV-21-012409, FDN 18.
On 21 January 2022, Livesey P issued a ruling concerning the extent to which it was appropriate for this Court to exercise the parens patriae jurisdiction in relation to this matter. He ordered that the sole issues to be determined were whether HS should live permanently in Queensland with his father pending the determination of the amended application for care and protection orders by the Youth Court; and as a corollary, whether there should be contact between the child and the mother and the maternal family.[5]
[5] FDN 20 at Exhibit SF3.
On 21 February 2022, Livesey P ordered, subject to further order, that the Chief Executive be restrained from permanently relocating the child to Queensland for the purpose of full-time residence with the father (‘the restraining order’).[6] His Honour further ordered that the Department facilitate “reunification therapy” with the mother and the maternal family within six weeks “so as to endeavour to quickly restore weekly face to face contact” (‘the first therapy order’). The respondent contends, supported by the child representative, that whilst the term “reunification” was used, it is apparent that the Court meant “reconnection” in that the Court did not order that the child be reunified to live with the mother.
[6] JLS v Chief Executive of the Department for Child Protection [2022] SASC 18.
On 6 July 2022, JS made an interlocutory application to call the matter back on. On 8 July 2022, Livesey P ordered that the Department urgently facilitate reconnection therapy between JS and HS, involving Ms Rachel Jolly, a psychologist, to commence the following week (‘the second therapy order’).[7]
[7] FDN 20 at Exhibit SF5.
At the time that these orders were made there were no judicial findings in relation to the Chief Executive’s Youth Court application for a six-month guardianship order.
After various delays in the Youth Court proceedings, on 11 October 2022 Magistrate Hodder delivered a judgment[8] and made a final order placing HS under the guardianship of the Chief Executive for a period of six months. In doing so the Youth Court found that:
·HS suffered harm in JS’s care and would likely suffer further harm should he return to her care;[9]
·JS meets the diagnosis criteria for a factitious disorder imposed on another;[10]
·JS remains unable to acknowledge any concerns about her parenting of HS and would likely not engage with meaningful therapy;[11]
·Despite the therapy JS participated in with Dr Shea Hart, JS has only limited insight into the child protection concerns;[12] and
·It was appropriate to make a final order (rather than an interim order with referral to the Reunification Court stream of the Youth Court) due to the Department’s case plan to effect reunification with the father.[13]
[8] Chief Executive of the Department for Child Protection and JS and SO and HO-S [2022] SAYC 45.
[9] [2022] SAYC 45 at [131] and [137].
[10] [2022] SAYC 45 at [116].
[11] [2022] SAYC 45 at [132].
[12] [2022] SAYC 45 at [133].
[13] [2022] SAYC 45 at [139].
Following the judgment of the Youth Court, the Chief Executive filed an interlocutory application in these proceedings on 17 October 2022 seeking that the restraining orders be discharged to enable HS to travel to Queensland, and that the second therapy order be discharged from the date that HS moves to Queensland.
On 17 October 2022, JS filed a notice of appeal in this Court from the judgment of the Youth Court, and filed an interlocutory application to stay the effect of that judgment.
On 29 November 2022, Livesey P dismissed the stay application and allowed the respondent’s interlocutory application in part by discharging the restraining order and second therapy order effective from Friday, 18 December 2022 on certain conditions. The order of 29 November 2022 was subsequently recast on 1 December 2022.[14] The primary effect of the order permitted the Department to relocate HS to Queensland. Paragraph 4 of the order as finally made required that:
4.     Additionally, during the period of her guardianship of the child under the      Youth Court order made on 11 October 2022, and unless subsequently varied by this      Court, the Chief Executive of the Department will at his cost arrange, and the child’s      father will facilitate; and
4.1     and use of pre-paid mobile phone to permit contact between the child and his              maternal family in Adelaide (as outlined in correspondence from the   Department dated 18 and 25 November 2022); and
4.2     the child to travel to Adelaide for seven days during January and April 2023         to visit his maternal family (as outlined in correspondence from the                 Department dated 25 November 2022); and
4.3.   the retaining of Dr Paul Gibney to conduct regular therapy with the child, and              if he thinks appropriate the child’s parents and family, so as to facilitate             reconnection with the child’s maternal family and for trauma, which is to be              reviewed by the Department by way of reports from Dr Gibney on a monthly         basis. Those reports are to be provided to the child’s parents within 48 hours            of receipt by the Department.
[14] FDN 20 at Exhibit SF8.
At the time these orders were made there were specific adverse findings against JS in the Youth Court. However, those findings and the six-month guardianship order were subject to an appeal to a single judge of the this Court. Further, there were some uncertainties in a relation to HS’s transition to living in Queensland in his father’s care, his progress in trauma and reconnection therapy in Queensland, and HS’s attitude to maintaining contact with JS once in Queensland.
On 19 December 2022, HS travelled to Queensland. Since then, HS has regularly attended trauma and reconnection family therapy with his father, Dr Paul Gibney, and Ms Sandra Cabak. Dr Gibney and Ms Cabak have provided regular progress reports. These reports are provided to JS under the terms of the orders made by Livesey P. In summary, it appears from those reports that HS has settled well into life with his father in Queensland, he is engaging well with his therapy and his father has demonstrated that he is consistently well able to meet HS’s needs.
On 22 March 2023, Blue J dismissed JS’s appeal from the Youth Court saying:[15]
By way of overview of the Magistrate’s findings and reasons as a whole, it was open to the Magistrate to find that [HS] had suffered harm in [JS’s] care in respect of both his health and education. It was also open to the Magistrate to find that, if he remained in [JS’s] care, he would likely continue to suffer the same type of harm. It was open to the Magistrate to conclude that it was in the best interests of [HS], and justified and appropriate, to make a guardianship order.
[15] Banks (A pseudonym) v Chief Executive of the Department for Child Protection [2023] SASC 39 at [367].
On 11 May 2023, JS filed a notice seeking to appeal the decision of Blue J. The notice of appeal was struck out on 22 September 2023 by the Court of Appeal.[16]
[16] Banks (A pseudonym) v Chief Executive of the Department for Child Protection [2023] SASCA 102.
The six-month guardianship order made in the Youth Court expired on 11 April 2023. On 31 March 2023, the respondent filed an application with the Youth Court seeking an order that HS be placed under the guardianship of the Chief Executive until he attains 18 years of age. That matter is listed for trial in the Youth Court. The Youth Court has made interim orders placing HS under the guardianship of the Chief Executive until the application is determined after trial.
The respondent’s application
The respondent seeks summary judgment under rr 143.1 or 143.2 of the UCR contending that there is no reasonable basis for the action. The principles applicable to an application for summary judgment are well-settled. The approach to be taken is conveniently summarised by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd:[17]
By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
[Citations omitted]
[17] Adelaide Brighton Cement Ltd. v Hallett Concrete Pty Ltd & Ors (2020) 137 SASR 117 at [59]-[60].
Accordingly, in determining whether there is a “reasonable basis” for defending the claim, I need not be satisfied that JS’s application is “hopeless” or “bound to fail”.[18] The test requires a practical consideration or assessment of whether there is a reasonable or real prospect of success.
[18] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.
The respondent contends that the orders made by Livesey P on 1 December 2022 are no longer necessary due to the change of circumstances and a social work case direction issued by the Department since that time. The respondent says that it is no longer appropriate for the Court to continue to exercise the parens patriae jurisdiction in relation to HS and that paragraph 4 of Livesey P’s order made on 1 December 2022 should be permitted to lapse given the change in circumstances. This position was supported by HS’s litigation guardian.
JS did not seek the continuation of those orders, rather she seeks alternative orders. Accordingly, at the conclusion of the hearing, I did not extend the orders of Livesey P. Unless JS’s application is granted, for all practical purposes, these proceedings are at an end and the Chief Executive’s application for summary judgment ought to be granted. It is therefore necessary to consider the orders sought by JS.
JS’s Application:
JS has filed a discursive application seeking some 17 orders.[19] In addition, she has added a further topic during oral submissions. Many of the orders sought go well beyond the topics Livesey P determined were appropriately the subject of the parens patriae jurisdiction of this Court. All of the orders are opposed by the respondent. The child representative largely supports the respondent’s position but made additional submissions in opposition to some of the proposed orders. I will deal with the orders sought in turn.
[19] FDN 4.
Proposed Order 1: Assessment of viability of reunification.
It is unclear precisely what is sought in this order, but it appears likely that JS seeks orders for reunification with HS. There are now extensive judicial findings, confirmed on appeal, in relation to JS and the child protection concerns about HS based upon extensive expert opinion evidence and documentary material before the Court. On that basis I decline to make orders in terms of proposed order one.
Proposed Order 2: Urgent processing of the Kinship Application.
This apparently relates to an application by HS’s adult half-brother and his partner seeking to care for HS in South Australia. I question whether JS has standing to agitate that topic but, in any event, there is no reasonable basis to disturb HS’s living arrangements in Queensland, nor is there any evidence to suggest that it would be in HS’s best interest for his living arrangements to change in the manner suggested. The application is not supported by the child representative who contends that HS’s interests are best served by his current living arrangements. I decline to make that order.
Proposed Order 3: Permission for HS to contact maternal family.
JS contends that there are breaches of the orders made by Livesey P concerning contact between HS, JS and his maternal family. There is no evidence to support this contention. Rather, the evidence establishes that HS has been provided with a prepaid mobile phone for the purpose of permitting contact between him and his maternal family whilst in Queensland. He is able to contact them when he wishes. Further, the respondent has paid for HS to travel to Adelaide for the purpose of contact with his maternal family. He has also been provided with therapy from Dr Gibney and Ms Cabak directed to maintaining that contact. There is no evidence that the orders of Livesey P made on 1 December 2022 have been breached. I decline to make this order.
Proposed Order 4: Contempt Application: Reunification order made by President Livesey.
The orders made by Livesey P did not require reunification. I accept the submission made by the respondent that whilst the term “reunification” therapy was used, the Court clearly intended it to mean “reconnection”. The express purpose of the order was to endeavour to restore weekly contact between JS and HS. The respondent is not in contempt of court. I decline to make this order.
Proposed Orders 5, 6 and 7: Further assessments of and/or treatment for HS and JS.
I will deal with proposed orders 5, 6 and 7 together. In summary, these proposed orders seek further assessments of and/or further therapy for HS. There is no evidentiary basis to conclude that HS’s current regular therapy with Dr Gibney and Ms Cabak is insufficient or inappropriate. Further, I note the submissions of the child representative that express concern at a proposal for further psychological assessments of HS and in particular the proposal which involves HS returning to Adelaide for the purpose of that assessment. Nothing has been presented to the Court to establish that there is anything inappropriate about the current arrangements and accordingly, I decline to make these orders. Proposed order 7 appears to relate to JS seeking to challenge the diagnosis of factitious disorder imposed on another. That issue has been heard and determined in the Youth Court; and was the subject of an unsuccessful appeal to this Court. Accordingly, I decline to make that order.
Proposed Orders 8: Disclosure request.

JS seeks an order directing Ms Cabak to produce her letter of instruction. The respondent has filed material indicating that this disclosure request has already been answered and documents provided to JS via email.[20] I decline to make this order.
[20] FDN 13 at Exhibit SF17.
Proposed Order 9: Accommodation and travel requests for JS.
This proposed order appears to be a request by JS for the Chief Executive to arrange and fund JS’s travel to, and accommodation in, Queensland to undertake face to face appointments with Dr Gibney. The Chief Executive offered to do this on a single occasion.[21] JS declined this offer and has refused to engage with Dr Gibney to the present date. There is no material placed before me that suggests that payment to enable JS to travel to Queensland for family therapy is necessary or reasonable. I note that it is possible for such sessions to occur via video link. I decline to make this order.
[21] FDN 13 at [14]-[15].
Proposed Orders 10 and 16: Reinstation of weekly family therapy.
This proposed order seeks “cancelled” family therapy to be reinstated on a weekly basis. This application is not supported by the child representative. The therapy with JS was cancelled by Dr Gibney because JS refused to sign a therapeutic contract outlining her expected involvement and obligations. The rationale behind the request for such a contract is explained in Dr Gibney’s covering email. I accept that it is a reasonable and necessary prerequisite to family therapy. A similar contract has been signed by HS’s father, Ms Cabak and Dr Gibney. In the absence of the signed agreement, no therapy between HS and JS has occurred. There is no suggestion from JS that she is prepared to engage with Dr Gibney in this manner. I decline to make this order.
Proposed Orders 11 and 12: Judicial interview of HS and Appointment of Ms Jolly.
The first of these orders effectively seeks a judicial interview of HS. Livesey P previously considered and rejected an application of this type in these proceedings. The child is separately legally represented. The child representative has advised the Court of his interviews with HS. There is no reason to revisit the decision of Livesey P. I decline to make this order. The second order seeks the involvement of another therapist for HS. HS is already receiving therapy with Dr Gibney and Ms Cabak which is progressing well according to their reports.[22] There is no basis to conclude that the therapy is insufficient or inappropriate. I further note that the therapist proposed is based in South Australia. I decline to make this order.
[22] FDN 34 at Exhibits SF1-SF2.
Proposed Order 13: Arrangements for April 2023.
This proposed order relates to a family visit in April 2023, which has already occurred. I decline to make this order.
Proposed Order 14: Increased scheduled family contact.
JS seeks increased scheduled contact with HS. Specifically, she seeks one hour each Wednesday and two additional 30 minute times per week to enable her to have regular communication with HS about his emotional well-being, social activity, and to support his learning. The child representative submits that there is not enough evidence justifying the making of the order for increased contact. Indeed, the evidence suggests that HS is struggling with the current level of contact. In a report provided by Ms Cabak and Dr Gibney dated 2 June 2023 it is stated that:
… Overall HS reports the frequency and the length of contact with his mother and maternal family members to be onerous at times. This is not because he does not want to speak with his mother or his family, but because it limits his ability to develop routines and engage in extracurricular activity after school. …
It appears from their reports that HS does not wish for the contact with his mother to cease but for the frequency and the length of contacts to be reviewed. I decline to make this order, noting further that contact is a matter that is the subject of the respondent’s case plan for HS and that JS has rights of review in relation to that.
Proposed Order 15: Production of reports by Dr Gibney.
It is unclear if JS seeks a greater frequency of reporting by Dr Gibney or whether she is complaining about delays in forwarding the reports that are produced. There is no evidence that the Chief Executive is not providing reports shortly after they have been made available to the Chief Executive. There is no evidence that the frequency of the reports is inadequate in the circumstances. I decline to make this order.
Proposed Order 17: Increase of maternal brother’s family contact with HS.
This proposed order seeks increased family contact between HS and his brother, RS. Family contact has been arranged in accordance with the plan that was before Livesey P when he made orders on 1 December 2022. This plan remains in place. There is no evidential basis to make orders to change this arrangement. Further, I note the comments quoted above from the report from Ms Cabak and Dr Gibney dated 2 June 2023. I decline to make this order.
JS also made oral submissions on 2 May 2023 for orders that HS be returned to her full-time care. This proposed order is considerably outside the scope of the ruling Livesey P made on 21 January 2023. In any event, there is no evidence to suggest that it would be in HS’s best interest for him to have his living arrangement altered again and to be returned to the care of JS. Indeed, there are judicial findings to the contrary. I note further that there are proceedings in the Youth Court in which the respondent seeks guardianship of HS until age 18. JS is a party to those proceedings.
Conclusion
I dismiss FDN 4 on the basis that JS is seeking relief outside the scope of Livesey P’s ruling on 21 January 2022 as to the extent of this Court’s parens patriae jurisdiction in this matter. Further, the applications made by JS are not supported by the evidence, and the relief sought relates, in part, to matters which are currently the subject of proceedings in the specialist jurisdiction of the Youth Court of South Australia.
I uphold the Chief Executive’s application for summary judgment on the basis that there is no reasonable basis for the relief sought. There have been significant changes since the orders were made by Livesey P on 21 January 2022 and 1 December 2022. It is no longer appropriate for this Court to intervene nor to make any further orders in the parens patriae jurisdiction. In those circumstances, it is not necessary to address the alternative application of the Chief Executive and, accordingly, I dismiss that application.

[2023] SASC 174

8 December 2023