JV v The Chief Executive of the Department for Child Protection - [2020] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal)
JV v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS
[2020] SASC 38
Reasons for Decision of The Honourable Justice Kelly
20 March 2020
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 - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE
Appeal against the decision of a Magistrate of the Youth Court to order that the fourth and fifth respondents be placed under the guardianship of the Chief Executive of the Department for Child Protection until they each attain 18 years of age pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA).
Whether the Magistrate applied the correct legal test – whether the Magistrate considered other guardianship options – whether the Magistrate failed to consider relevant matters – whether the failure of the appellant’s counsel to call expert evidence at trial has resulted in a miscarriage of justice.
Held (dismissing the appeal):
1. The Magistrate correctly identified the legislative provisions relevant to his determination. His Honour’s analysis of the evidence properly focused on the risk of harm to the children and the need to keep them safe from harm.
2. There was no proper basis to make any further guardianship order for a period of 12 months or less in the case of either child.
3. Even if the proposed evidence had been led at trial, it would not have made any difference to the conclusions reached by the Magistrate. The failure to call Dr Tustin has not resulted in a miscarriage of justice.
Children and Young People (Safety) Act 2017 (SA) s 53(1)(g), s 53(1)(f), s 53(1)(e), s 50(3), s 17, s 18, s 84; Children’s Protection Act 1993 (SA) s 16, referred to.
Minister for Child Protection v T, SJ & Ors [2018] SASCFC 46, applied.
M, L v The Minister for Education and Child Development [2018] SASCFC 131, discussed.
CDJ v VAJ (No 1) (1998) 197 CLR 172; H, JR v Department for Child Protection & Anor [2017] SASC 121; H, A v Minister for Families and Communities; H, J v Minister for Families and Communities [2005] SASC 339, considered.

JV v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS
[2020] SASC 38
Youth Court Appeal
KELLY J.
Introduction

The appellant, JV, is the mother of five children, two of whom are the subject of orders made in the Youth Court on 25 July 2019.
On that date, the Magistrate made orders that both children, TKV and TLV, be under the guardianship of the Chief Executive of the Department of Child Protection until they attain the age of 18 years. Those guardianship orders were made pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (‘the Safety Act’).
The appellant seeks an order from this Court that the guardianship orders made by the Magistrate be set aside and the matter be remitted to the Youth Court for a rehearing of the application such that the expert evidence of a clinical psychologist, Dr Tustin, can be received. By application dated 18 November 2019, the appellant also sought permission to elicit further evidence in support of the orders sought on appeal as follows:
(a)The new material referred to in the appellant’s affidavit sworn on 23 October 2019 regarding events that have occurred since 25 July 2019; and
(b)The reports of Dr Don Tustin, Clinical Psychologist (annexed as “JV3” to the appellant’s affidavit sworn on 23 October 2019).
The amended grounds of appeal as ultimately argued assert that the learned Magistrate:
1.Applied the incorrect legal test prescribed in s 50(3)(a) and s 50(3)(b) of the Safety Act in respect of both TKV and TLV.
2.Failed to consider any order other than an order pursuant to s 53(1)(g) of the Safety Act and, in particular, did not consider whether an order should be made for a period not exceeding 12 months under s 53(1)(f) or (e) of the Safety Act.
3.Erred by failing to consider the fact that the grandparent of TLV will be in her nineties for a period of the order and erred by failing to consider the risks associated with foster care versus the risks associated with care provided by the appellant.
The appeal first came on for hearing before me on 21 November 2019.
During argument on that date, it became apparent that the appellant’s main grievance was not reflected in the appeal grounds as originally filed or as amended. Accordingly, over objection, I granted permission to the appellant to further amend the notice of appeal to argue a fourth ground; that the failure of the appellant’s counsel to call Dr Tustin to give expert evidence at trial has resulted in a miscarriage of justice.
At the conclusion of the hearing on 21 November 2019, all parties were invited to make further submissions in writing. Each of the parties did file further submissions directed mainly to the issue of Dr Tustin’s reports, his expertise and the proposed evidence to be led from him.
The matter came on again for further oral argument on 9 December 2019. Having allowed the appellant to amend the notice of appeal, and having then heard argument from all parties with respect to the additional ground, I nevertheless formed a firm view as to the disposition of this appeal on 9 December 2019 and I ruled in the interests of justice to dismiss the appeal and publish reasons later. The following are my reasons for dismissing the appeal.
It is necessary to set out the chronology of events prior to and subsequent to the making of the Chief Executive’s application before the Youth Court.
Factual Background
The appellant, JV, is the biological mother of five children, the youngest two of whom are the subject of these proceedings. The eldest three are daughters aged 24, 21 and 14. The appellant’s 14-year-old daughter resides with her biological father. JT, the daughter of the appellant’s eldest child, resided with the appellant for periods of time from 2014 to 2016.
The children the subject of these proceedings are the fourth and fifth respondents, TKV and TLV. TKV was born on 24 August 2014 and is 5 years of age. TLV was born on 25 April 2016 and is 3 years of age. The biological father of TKV is the third respondent, JD, and the biological father of TLV is the second respondent, SP. JD is presently incarcerated for charges related to serious assault and consents to the orders sought by the first respondent in respect of TKV. SP has supervised access to TLV and consents to the orders sought by the first respondent in respect of TLV. SP identifies as Aboriginal, as does TLV.
There is a significant child protection history regarding the appellant and all of her children (and JT) dating back to 1996, largely relating to the children being exposed to drug use and domestic violence, the appellant’s transient lifestyle and (at times) homelessness. The appellant has also had ongoing mental health issues which have raised concerns about the impact on physical care needs of the children.
Between about 2015 and January 2017, the appellant was in a relationship with SP. That relationship was characterised by drug use and significant domestic violence, with JT and TKV both being exposed to violent incidents, as well as TLV being exposed to violence in utero. Both the appellant and SP were reported to be perpetrators of the violence and both were reported to have made attempts to self-harm and to suicide.
In 2014, the Department for Child Protection (‘the Department’) received several notifications of extreme neglect, exposure to substance abuse, domestic violence, unstable mental health and unsafe environments. It was also reported that the appellant was, at times, homeless while pregnant with TKV.
In February 2015, the Department received notifications alleging that TKV had been exposed to a verbal argument about money and drugs between the appellant and one of her ex-partners, Mr Karpany. SA Police were required to intervene. A further notification alleged that Mr Karpany hit the appellant and split her lip whilst she was holding JT. Mr Karpany was later alleged to have assaulted the appellant over a period of hours with a knife and held the appellant and TKV hostage for a period of two weeks.
Between May and August 2015, the Department received notice of several factors that raised further concerns about the safety of the children. A notification alleged that the appellant had returned a positive result for amphetamine and methamphetamine following a urine screen and also alleged that drug paraphernalia was located in the appellant’s bedroom where the appellant was reportedly feeding TKV.
From September to November 2015, the Department received ongoing notifications in relation to JT and TKV being exposed to domestic violence between the appellant and SP. Police attended a verbal argument between the appellant and SP in September 2015, where concerns were raised about the state of the home. Concerns were also raised around the appellant’s reported substance misuse while pregnant with TLV and the drug use by her and SP while in the presence of TKV and JT. A notification was received that the appellant disclosed she and SP were “addicted to ice” and “smoked eight balls of ice per day”. The Department was notified that SP was “generous” with his provision of substances to others and that, because of this, multiple people were often present at the premises.
In November 2015, the Department received a notification that the appellant had placed a hose in her car while revving the engine to fill the car with carbon monoxide. She was approximately 20 weeks pregnant with TLV at that time. It was alleged that SP smashed the window to the car while holding TKV, exposing her to the fumes.
In December 2015, SP reportedly assaulted the appellant by throwing a can in her face, causing lacerations.
On 2 December 2015, the appellant reported to Drug and Alcohol Services South Australia (‘DASSA’) for assistance to change her methamphetamine use, where she stated that she was smoking up to 1 gram of amphetamines daily while pregnant and had not accessed any antenatal care, that she had two small children in her care, and that she was living in an abusive relationship with SP where she could access drugs at no cost. She next reported to DASSA in February 2016 and reported she had reduced her drug use to four points per day.
In February 2016, the Department was notified that Mr Karpany, a former partner of the appellant, had taken TKV from the appellant. A police vehicle chase occurred to recover TKV but was terminated for safety reasons.
In early 2016, the Department continued to receive ongoing notifications of the appellant and SP’s drug use while caring for TKV and JT, the poor state of the house, and the domestic violence between the appellant and SP to which JT and TKV were exposed. There were also notifications suggesting that drugs were being manufactured at and/or supplied from the premises.
On 20 April 2016, it was alleged that an argument occurred between the appellant and SP where the appellant was reported to have been hitting her own stomach with her fists. SP attempted to stop her using physical force. The appellant then left the home with JT and TKV. SP then reportedly took an overdose of medication and alcohol, tried to harm himself with a knife, and attempted to set the house on fire. He was subsequently detained pursuant to the Mental Health Act 2009 (SA).
On 21 April 2016, the Department received a Tier 1 notification detailing concerns for JT and TKV’s wellbeing. On that date, Department workers and police attended the home. Both JT and TKV were found to have nappies full of urine and faeces with the appellant only changing them at the request of a Department worker some time into the home visit. The appellant confirmed she had been using methamphetamines throughout her pregnancy but stated she had given up “cold turkey” a week ago and that SP’s suicide attempt would motivate her to remain abstinent. The appellant admitted that she and SP often had verbal arguments and that, at times, the children were present. The house was observed to be disorderly with one room unable to be entered due to clutter. The house had rubbish throughout and the children were unkempt. The front door had significant burns and a petrol bottle was found at the front of the house. On that date, JT and TKV were removed from the appellant’s care pursuant to s 16 of the Children’s Protection Act 1993 (SA).
Four days later, on 25 April 2016, TLV was born and was immediately taken into state care.
Guardianship arrangements of TKV and TLV since removal
On 2 August 2016, TKV and TLV were placed under the guardianship of the Minister for Education and Child Development for a period of 12 months. The appellant was granted access to TKV and TLV and SP was granted access to TLV. At the time, the biological father of TKV was unknown to the Department.
TKV was initially placed into state foster care. Following the identification of her biological father after paternity testing, she was placed into the care of her paternal aunt on 27 October 2017.
TLV was placed into the care of his paternal grandmother, VP, on 29 April 2016 and has remained in that placement since. VP supervises SP’s access to TLV.
In January 2017, the appellant and SP split up.
In July 2017, the Department applied for long term orders in respect of both TKV and TLV. Ultimately, however, on 2 November 2017, TKV and TLV were placed under the guardianship of the Minister for Education and Child Development for a further 12-month period to allow the appellant a further opportunity to address the child protection concerns and work towards reunification.
On 18 December 2017, both the appellant and SP were granted access with TLV and the appellant was granted access with TKV.
On 12 October 2018, the originating care and protection application the subject of this appeal was filed, seeking that TKV and TLV be placed under the guardianship of the Minister for Child Protection until they each reach 18 years of age. The applicant at that stage was the Minister for Child Protection and the application was brought pursuant to the Children’s Protection Act 1993 (SA). The application was amended with the consent of all parties numerous times. The applicant at the time of trial was the Chief Executive of the Department for Child Protection (‘the Chief Executive’) and the relevant Act by that time was the Safety Act.
On 25 July 2019, TKV and TLV were placed under the guardianship of the Chief Executive until they attain the age of 18 years pursuant to s 53(1)(g) of the Safety Act.
Although the outcome of this appeal ultimately turned on the resolution of the issue raised in grounds 3 and 4, in the interests of expediency I will deal with each of the appeal grounds in chronological order.
Ground 1
The Magistrate gave extensive and detailed reasons for making the orders sought by the Chief Executive. His Honour identified the relevant sections of the Safety Act applicable to the determination of the application. His analysis of the evidence correctly focused on the risk of harm to the children and how to keep them safe from harm. His Honour observed:
[65]The prevention of harm to children is the paramount consideration in the application before the Court. As to TKV, reunification with JV is likely to case (sic) her significant harm, because of the disorganised attachment relationship she has with JV, and the likelihood that severe emotional reactions will be triggered as a result of TKV’s previous traumas in JV’s care. Indeed, any removal of TKV from her current placement is likely to cause her harm, and is simply not in her interest. As to TLV, although he does not show signs of harm at JV’s hands, he has little relationship with her, and a secure attachment to his current carers. To remove him from them would similarly be traumatic and harmful to him. Further, I am not satisfied that JV will be to be able (sic) to mitigate the harm to the children. The fact that JV has been unable to repair her relationship with TKV or establish an attachment relationship with TLV suggests deficiencies in her reflective and parenting capacity. Given her lack of progress in those areas to date, despite intensive help over a considerable period, the prospect of substantially enhancing her parenting capacity in the near future is doubtful. To allow JV more time to work on this with a view to later reunification, would only exacerbate the risk of harm to the children, even if JV’s parenting capacity improves, because as time goes by, the children will only become more settled with their current carers, making a disruption all the more traumatic. There have been two 12 month orders already. Prolonging the uncertainty about their future will be unhelpful for them and, frankly, unfair to them. The desirability of a timely resolution of this matter is a factor I must consider. In my view, the sooner the children know where they are going to grow up the better.
By virtue of the transitional provisions in the Safety Act, the power to make the order sought by the Chief Executive is to be found in s 53(1)(g) of the Safety Act.
As Vanstone J observed in Minister for Child Protection v T, SJ & Ors,[1] s 53(1) provides the Court with a broad discretion to make a range of orders where it is appropriate to do so. The Safety Act does not identify specific factual matters about which the Court must be satisfied before making an order. The criteria for making an application found in s 50(3) and the grounds of the application are relevant in determining whether it is appropriate for the Court to make the order sought. Her Honour continued:[2]
[1] [2018] SASCFC 46, [11].
[2] Minister for Child Protection v T, SJ & Ors [2018] SASCFC 46, [16].
[16]The reference to the Chief Executive in s 59(1) is anomalous in the context of a pre-existing order of the Court made under the CP Act. Under parts of the Safety Act which will come in to operation on 22 October 2018 the Chief Executive of the Department will replace the Minister as the person who will be appointed to be the guardian or custodian of a child or young person pursuant to orders under s 53 of that Act. Hence the reference to the Chief Executive in s 59. The Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) makes provision for a transition between the two regimes. Section 24(1) and (2) of that Act provides as follows:
24—Chief Executive to be guardian of certain children and young people
(1)This section applies to a child or young person who was, immediately before the commencement of this section, under the guardianship of the Minister pursuant to an order of the Court under the repealed Act.
(2)On the commencement of this section a child or young person to whom this section applies will, by force of this subsection, be taken to be under the guardianship of the Chief Executive.
…
The grounds relied on by the Chief Executive in respect of this application were identified as follows:
1.That there is a significant risk that the children will suffer serious harm to their physical, psychological or emotional well-being against which they should have, but do not have, proper protection;
2.The children have been abused and neglected;
3.The guardians are unable to care for and protect the children and/or are unable to exercise adequate supervision and control over the children.
The application did not specify which section of the Safety Act was engaged.

Although the appellant complains that the Magistrate applied the incorrect test set out in s 50(3)(a) and s 50(3)(b) of the Safety Act, the appellant did not ever clearly articulate what the correct test under that section is.
Section 50(3) of the Safety Act is set out in full below:
50—When application can be made for Court orders
…
(3)An application for an order under section 53 may be made—
(a)     if the applicant—
(i)reasonably suspects that a child or young person is at risk; and
(ii)is of the opinion that the making of such orders is necessary or appropriate to protect the child or young person from harm, or to allow the exercise of powers or the performance of functions under this Act in respect of the child or young person; or
(b)     if the applicant is of the opinion that—
(i)proper arrangements exist for the care and protection of a child or young person (whether pursuant to a decision of a family group conference or an exercise of administrative powers under the Family and Community Services Act 1972); and
(ii)the child or young person would be likely to suffer psychological harm if the arrangements were to be disturbed; and
(iii)it would be in the best interests of the child or young person for the arrangements to be the subject of such orders; or
(c) if the applicant is acting in accordance with Chapter 7 Part 3; or
(d)     if the order is to be made with the consent of the parties to the proceeding; or
(e)     in any other circumstances with the permission of the Court.
…
As I understood the submissions made on appeal, the argument in respect of both grounds 1 and 2 amounts to a complaint that because there was no family group conference or exercise of administrative powers under the Family and Community Services Act 1972 (SA) prior to the instigation of the application by the Minister, there was therefore no basis for any opinion to be formed pursuant to s 50(3)(b) of the Safety Act. Therefore, the only matter which was relevant to the Magistrate was the question of whether he could reasonably suspect that the children were at risk. As at the date of the application, neither of the children were at risk because they had been placed with their current guardians.
In my view, the appellant’s argument is based on a misconception as to the operation of the legislative framework in the Safety Act.
The Magistrate correctly identified the legislative provisions relevant to his determination:
[6]The criterion for the making of an order under section 53(1) of the Safety Act is ostensibly simple. That subsection states that the Court must be ‘satisfied that it is appropriate’ to make one or more of the orders set out in the sub-section. However, the criteria for making an application under section 53, which are found in section 50(3) of the Safety Act, and the grounds of the application, will be relevant in identifying whether it is appropriate for the Court to make the order sought. The relevant parts of that section are as follows:
50—When application can be made for Court orders
…
(3)An application for an order under section 53 may be made—
(a)if the applicant—
(i)reasonably suspects that a child or young person is at risk; and
(ii)is of the opinion that the making of such orders is necessary or appropriate to protect the child or young person from harm, or to allow the exercise of powers or the performance of functions under this Act in respect of the child or young person; or
(b)if the applicant is of the opinion that—
(i)proper arrangements exist for the care and protection of a child or young person (whether pursuant to a decision of a family group conference or an exercise of administrative powers under the Family and Community Services Act 1972); and
(ii)the child or young person would be likely to suffer psychological harm if the arrangements were to be disturbed; and
(iii)it would be in the best interests of the child or young person for the arrangements to be the subject of such orders;
…
[7]Risk is defined in section 18 of the Safety Act, the relevant parts of which are as follows:
18—Meaning of at risk
(1)For the purposes of this Act, a child or young person will be taken to be at risk if—
(a)the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or
(b)there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or
…
(d) the parents or guardians of the child or young person—
(i)are unable or unwilling to care for the child or young person;
…
(3)In assessing whether there is a likelihood that a child or young person will suffer harm, 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]Harm is defined in section 17(1) of the Safety Act. It states that harm means ‘physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect’. Section 17(2) provides that ‘psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life’.
[9]Section 50(4) of the Safety Act provides that before applying for a care and protection order, the CE must assess the likelihood of reunification occurring and the period in which reunification is likely to occur. The Court should consider whether that provision has been complied with.
[10]Parts 2 and 3 of Chapter 2 of the Safety Act set out certain guiding principles that the Court must take into account when exercising jurisdiction under it. Section 7 provides that the paramount consideration in the administration of the Safety Act is to ensure that children and young people are protected from harm. All other principles and considerations are subsidiary to that. Section 8(1) lists certain needs of children and young people that must also be considered, including their need to be heard, their need for love and attachment and for self-esteem and their need to achieve their full potential.
[11]Section 8 (3) states that the Court must have regard to the desirability of maintaining the connection of children with their biological family. The Protection Act, now repealed, provided that the applicant for a care and protection order had to satisfy the Court that there was no parent able, willing and available to provide adequate care and protection for the child in question, before an order could be made. Under the Safety Act this is not a requirement. Nevertheless, the desirability of a child being raised by its biological parents remains a relevant consideration. As the Full Court said in M, L v Minister for Education and Child Development, “there exists an innate value in the bond between natural parents and their children as they grow older and the denial of that bond may also cause harm”. Because of the wording of section 8(3), if it is not considered appropriate that a child be cared for by their biological parent, the Court should nevertheless have regard to the desirability of maintaining some other form of connection.
[12]Section 10 of the Safety Act provides that the effect is to be given to what are called the ‘principles of intervention’. These include, relevantly in this case, the importance of making a timely decision about a child in order to promote permanence and stability, and taking account of a child’s disabilities and culture. Section 11 provides that effect is to be given to what are called the “placement principles”. Relevantly to this case these include the principle that children who have been removed from a person’s care should be placed in a safe, nurturing, stable and secure environment, and that preference should be given to placing a child with a person with whom they have an existing relationship. What is termed the Aboriginal and Torres Strait Islander Child Placement Principle is set out in section 12. This must be applied to the placement of Aboriginal and Torres Strait Islander children and young people. Even if the Court is not being asked to make specific placement orders, placement proposals ought to be considered when the Court decides whether to make orders under section 53(1).
[Citations omitted]
His Honour’s analysis of the evidence properly focused on the risk of harm to the children and the need to keep them safe from harm.
Of particular relevance to this application are the provisions of s 17, s 18(1) and s 18(3) of the Safety Act:
17—Meaning of harm
(1)For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect.
(2)In this section—
psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.
18—Meaning of at risk
(1)For the purposes of this Act, a child or young person will be taken to be at risk if—
(a)     the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or
(b)     there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or
(c)     there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of—
(i)being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or
(ii)taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1961 of the Commonwealth; or
(iii)enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth; or
(d)     the parents or guardians of the child or young person—
(i)are unable or unwilling to care for the child or young person; or
(ii)have abandoned the child or young person, or cannot, after reasonable inquiry, be found; or
(iii)are dead; or
(e)     the child or young person is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(f)     the child or young person is of no fixed address; or
(g)     any other circumstances of a kind prescribed by the regulations exist in relation to the child or young person.
…
(3)In assessing whether there is a likelihood that a child or young person will suffer harm, 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.
…
Clearly, both s 17 and s 18 inform the content of s 50. It can be seen at [65] (reproduced at [35] above) of the Magistrate’s reasons that these considerations were at the centre of his Honour’s reasoning. As the Magistrate stated, the circumstances in which the application was brought were relevant to identify whether it was appropriate to make the order sought.
In my view, there is therefore no substance to this ground of appeal.
Ground 2
I turn now to ground 2 which is a complaint that the Magistrate failed to consider whether an order should be made under s 53(1)(f) or (e) of the Safety Act for the children to be placed under the care of the Chief Executive or some other person for a lesser period, namely a period not exceeding 12 months.
At the trial, the appellant sought the immediate return of the children to her. The Chief Executive sought an order that the children be placed under the care and guardianship of the Chief Executive until they attain the age of 18. While there is no doubt the Court had the power to make the order for 12 months or less, there was no application by either party that the Court make such an order. That is hardly surprising in light of the fact that there had been two previous orders of 12 months duration made and the thrust of the evidence presented by the Chief Executive was that the children now required long term stability.
Even if this had been a live issue at trial and such an application had been made, as the evidence unfolded it became plain that there was no proper basis to make any further guardianship order for a period of 12 months or less in the case of either TLV or TKV.
In my view, there is no substance in this ground of appeal either.
Ground 3
I turn now to ground 3 which is a complaint that there was an error on the part of the Magistrate because he failed to consider the fact that TLV’s grandparent, with whom he is currently residing, will be in her nineties for a period of the order and further that he failed to consider the risks associated with foster care as compared with the risks associated with the care provided by the appellant.
In my view, there was no obligation on the Magistrate to specifically refer to either of those matters. However, it is obvious that to some extent a valuation of the care provided by the appellant in contrast with the care provided by the foster carers was a matter which the Magistrate must have implicitly considered in order to reach the conclusion which he did that the children are currently in secure and appropriate kinship placements and that those placements should be ongoing.
The fact is that the placement of the children is a matter for the guardian to determine by virtue of the provisions of s 84(1)(a) and (b) of the Safety Act:
84—Chief Executive’s powers in relation to children and young people in Chief Executive’s custody or guardianship
(1)Subject to this Act, the Chief Executive may, in relation to a child or young person who is in the custody, or under the guardianship, of the Chief Executive, from time to time do 1 or more of the following:
(a) place the child or young person, or permit the child or young person to remain, in the care of a member of their family;
(b) place the child or young person in the care of any other suitable person;
…
If a person is dissatisfied with a placement decision, there are mechanisms in the Safety Act for internal review and for review by the South Australian Civil Administrative Tribunal.[3]
[3] Children and Young People (Safety) Act 2017 (SA) ss 15, 157, 158.
On an application for long term guardianship, the Court is required to assess the risks to the child. There was powerful evidence before the Court, which was not contradicted, that the current placements for both children were very good placements and the children’s needs were being well met. The Magistrate correctly found that each of the children would suffer harm if removed from their respective current placements.
The fact is that people do become sick, old and eventually die. This is one of the exigencies of life and is part of the inevitable background against which any application for care and guardianship must be determined. If the circumstances of either placement change in a relevant way there are also appropriate mechanisms within the Safety Act for the placement decisions to be reviewed at that time. In my view, it is not for this Court to second guess what may or may not occur down the track as the grandparent of TLV ages.
There is no merit in this ground of appeal either.
Ground 4
I turn now to the fourth and final ground of appeal which is the main ground relied on by the appellant.
The thrust of the argument with respect to this ground is that the appellant’s counsel at trial, who was in possession of three reports prepared by Dr Don Tustin, a clinical psychologist, ought to have tendered those reports at trial and further called Dr Tustin to give expert and other evidence at trial. It is submitted by the appellant that failure to do so has resulted in a miscarriage of justice.
Whether the Tustin reports amount to ‘expert’ reports, and whether Dr Tustin would have met the criteria to give evidence as an expert during the trial, is unclear.
Each of the Tustin reports are exhibited (at “JV3”) to the affidavit of the appellant sworn on 23 October 2019. Appended to each of the reports is a brief Curriculum Vitae, a blank checklist-type worksheet entitled “Topics to Monitor in Parent-Child Observations”, an article entitled “Disrupted Attachment”, an article entitled “Whether separation trauma has long term effects on a child’s mental health”, and an article entitled “Disorganized attachment”.
The substance of each of Dr Tustin’s reports can be summarised as follows.
Dr Tustin’s report regarding TLV dated 29 January 2019
Dr Tustin’s report regarding TLV is addressed to the appellant. The purpose of the assessment is stated to be for the appellant to use as part of her submissions to the Department and the Youth Court to have TLV returned to her care. Dr Tustin writes that he is aware that TLV was removed from the appellant’s care at birth after concern was expressed about the appellant’s care of her grandchild, JT.
The “sole issue” considered for assessment by Dr Tustin in the report, as identified to him by the appellant, is attachment.
The assessment appears to have consisted of observation of the appellant and TLV by a Department social worker over a one hour period in a room on 21 December 2018. Observations were made about 20 topics, including, among other topics, how the parent greets and separates from the child, how the parent and child show affection towards one another, and how the parent enjoys the child’s company and plays with the child. The precise format of the assessment is not clear from the text of the report itself.
Dr Tustin concludes that observations of interactions between TLV and the appellant demonstrated that there is an attachment bond between them and no signs of disorganised attachment. Based on the observations of the Department social worker, Dr Tustin concludes that the appellant was responsive to TLV’s cues and signals, TLV displayed some distress to the appellant and waited for her to respond, and that the appellant showed an ability to soothe TLV by hugging him and speaking to him in a soothing tone.
Dr Tustin recommends that due to this attachment bond, it is unwise to introduce unnecessary further prolonged separations between TLV and the appellant, that the appellant should remain in a care giving role for TLV, that a reunification program should be commenced, that the appellant should participate in having equal shared parental responsibility for major decisions involving TLV together with other appointed carers, and that no artificial restrictions be introduced on contact between TLV and the appellant.
Dr Tustin’s report regarding TKV dated 29 January 2019
Dr Tustin’s report regarding TKV is also addressed to the appellant. The purpose of the assessment is again stated to be for the appellant to use as part of her submissions to the Department and the Youth Court to have TKV returned to her care. Dr Tustin writes that he is aware that TKV was removed from the appellant’s care in 2016 after concern was expressed about “use of substances, exposing children to domestic violence, neglect and transience”.

Again, the “sole issue” considered for assessment by Dr Tustin with respect to TKV in this report, as identified to him by the appellant, is attachment.
The same assessment procedure that was undertaken with respect to TLV and the appellant was also undertaken with respect to TKV and the appellant on the same date. The same Department social worker observed the assessment for a period of one hour, and TKV and the appellant were assessed on the same 20 topics.
Dr Tustin concludes that TKV displayed a “close and secure attachment bond with [the appellant]” and that there were no signs of disorganised attachment. Dr Tustin writes that he also observed signs of separation anxiety in TKV in that TKV was teary and clung to the appellant and did not want to be parted from her.
Dr Tustin recommends that the appellant participate fully in caring for TKV in a parental role and that a reunification program be commenced. He also recommends that the appellant participate in a co-parenting arrangement with others who provide care for TKV, that she have equal shared parental responsibility for making decisions about TKV, and that no artificial restrictions be introduced on the contact between TKV and the appellant. Dr Tustin writes that he did not observe “any grounds that require ongoing supervision of contact between [TKV] and [the appellant], following standards accepted in the Family Court of Australia”.
Dr Tustin’s report regarding the appellant dated 29 January 2019
Dr Tustin’s third report, which is an assessment of the appellant, JV, is addressed to the appellant’s lawyers. In this report, Dr Tustin states that he has read the report prepared by Dr Jureidini dated 12 April 2018 and is aware that two Departmental doctors have concluded that reunification is not viable between the appellant and either of her youngest two children. The contents of and opinions expressed in this report appear to be largely based on Dr Tustin’s meetings with the appellant and his observation of her interactions with TKV and TLV. Much of the report is based on matters reported to Dr Tustin by the appellant.
Dr Tustin advises that he met with the appellant on three occasions in December 2018. He reports that the appellant would like to remain part of ongoing decision-making on major topics in the form of a co-parenting relationship with other family carers of her children. Dr Tustin notes that the Department accepts that the appellant has made significant progress in ceasing her use of substances for a prolonged period.
The report notes that the Department submits that TKV displays emotional reactions following access with the appellant. Dr Tustin opines that these emotional reactions might reflect “treatable separation anxiety”.
Dr Tustin expresses the opinion that the welfare of both TKV and TLV can be suitability monitored by placing the children into a suitable co-parenting arrangement with carers who are relatives. He opines that he has not observed risk factors so severe as to warrant the continued involvement of the Department.
He states that at the time of writing the report he had not had sufficient time with the appellant to assess whether there are ongoing issues of severe mental illness but that no signs of this were apparent on the occasions they met.
He reports that the appellant supports the care arrangements in place for TLV and doesn’t wish to disrupt them, but expressed interests in participating in suitable co-parenting with other family members who care for TKV.
The evidence at trial
The assessment methods used and the views expressed in the reports of Dr Tustin, and the conclusions drawn therein, differ to the evidence led at trial from the two child psychiatrists, Dr Jureidini and Dr McEvoy.
Dr Jureidini’s evidence
Dr Jureidini qualified as a child psychiatrist in 1987 and has specialised in conducting a reunification service between parents and infant children for the last eight or so years. That service includes conducting parenting capacity assessments. Dr Jureidini said in evidence that parenting capacity is the ability of a parent to recognise their child’s needs and give them priority. In response to the question of how one attains parenting capacity, he said:
It’s a product of who you are really. So … the first thing that contributes to it is the quality of parenting you have yourself both in terms of the kind of person that makes you, but also the kind of modelling of parenting that you experience. In adults who haven’t had children themselves, the likeliest predictor of whether somebody has got parenting capacity is how they conduct themselves in intimate relationships. So somebody who has not been able to form satisfactory intimate relationships is at a higher risk for lacking parenting capacity that somebody who has formed strong intimate relationships.
When asked whether a person can learn parenting capacity, Dr Jureidini said:
There aren’t sort of lessons that you can have. You have to change as a person. If you are a person who lacks parenting capacity, you need to become a different person which is possible through therapy and, you know, we are working on that all of the time. But you have to also remember that there are things that inhibit a person from being able to manifest their parenting capacity. So if somebody completely lacks parenting capacity then they can’t parent, but you might have somebody who has parenting capacity, but can’t parent because of other factors in their life. So somebody who is the victim of domestic violence who is too scared to be able to parent properly, if you remove them from that situation of domestic violence, they may then be able to parent.
… parenting classes per se don’t address parenting capacity. They address parenting skills and again lacking parenting skills, even if you have parenting capacity, might prevent you from being a good enough parent. So somebody with parenting capacity might need parenting classes in order to parent, but somebody without parenting capacity won’t be fixed by having parenting classes.
Dr Jureidini was involved with the reunification process commenced between the appellant and TKV and gave evidence of a number of different assessments that were conducted to assess the parenting capacity of the appellant with respect to TKV. He also conducted assessments of the parenting capacity of the appellant and SP, though was not involved in the assessment of TLV.
Following his first assessment with the appellant, Dr Jureidini had some concerns about the impact of the previous experience she had exposed the children to and how she might, if she were to resume care of one or more of the children, address the damage that had been done in the past. At that initial stage, he considered that the appellant needed some therapeutic work before she could progress to the next stage of the suitability for reunification assessment. Dr Jureidini interviewed the appellant at least four times prior to the commencement of ‘phase 2’ of the reunification assessment. In phase 1, he hoped to achieve a level of recognition of the damage done and an understanding of what might need to be done to repair that damage. Dr Jureidini gave the example that when a parent comes to term with the damage that has been done, the may recognise that if the child is in a safe and positive placement, the best interests of the child are going to be served by the child remaining in that placement. Therefore, a consequence of achieving a level of parenting capacity is a parent learning to forego their primary parenting role because they recognise that what the infant needs is the care that they are going to get from the alternative carer.
During phase 1, Dr Jureidini assessed that the appellant had a level of recognition that warranted an attempt at phase 2. Despite this, Dr Jureidini said that he was not “wildly optimistic about the fact that phase 2 was going to lead to reunification”. The level of recognition Dr Jureidini considered the appellant to have was limited to being able to talk about parts of her own childhood and drug history and the progress she had made with that through therapy. The appellant was able to talk about her guilt at having put the children into untenable situations, however exhibited a tendency to see other people at fault for that. When she discussed her distress about the children being removed from her care, she seemed to be crying for herself and what had been done to her. She reported an occasion where she had become distressed thinking about what it meant for the children, which Dr Jureidini considered to be significant progress.
Dr Jureidini gave evidence of concerns that were raised about the quality of the relationship between the appellant and TKV in the phase 2 process which ultimately led to a recommendation not to proceed with reunification. He expressed the main concern to be what from the appellant’s point of view was a game of hide and seek:
So [TKV] got freaked out by something in the room and took sort of evasive – moved away, and then ran to hire under the table and screamed when [the appellant] approached and was obviously overwhelmed by those circumstances. That we thought in the context of the other information we had was a very worrying sign about the quality of the relationship in that it suggested that [TKV] felt unsafe in the relationship.
Dr Jureidini said that he had read notes from observations of access meetings between the appellant and TKV where there were positive interactions of smiling and TKV having hugged her mother. However, in response to a question whether this behaviour is inconsistent with TKV showing concerning behaviours after access, Dr Jureidini’s response was:
No. There are a number of factors at play there. The first is that the sort of safety systems that sometimes often referred to as attachment behaviours in infants, only get turned on under pressure when there’s a source of distress or danger. So you can’t really judge the quality of the attachment relationship when nothing bad’s happening or nothing potentially bad is happening. So you can have hours of access in which an adult and an infant appear to interact nicely, obviously that’s a bit encouraging, that’s a good thing, I’m not saying you ignore that completely. But if that hasn’t been tested by some kind of adverse circumstances you don’t know what’s going to happen when inevitably the parent-infant relationship is placed under pressure at some subsequent time. So that’s why we conduct the Cromwell procedure rather than just observing an access, because by the nature of that procedure it does place the mother-infant relationship under pressure, so we then see how that mother-infant dyad responds in those circumstances. So you might see three, four, five nice interactions. You’re a little bit reassured by that. You see one troublesome interaction, that carries more weight, might seem unfair, but that’s the nature of the relationship.
Dr Jureidini went on to describe the nature of the Cromwell procedure:
It’s a structured interaction that is observed from behind a screen by a therapist, and the mother in this case is given a series of tasks that they need to go through, an activity, some puzzles, packing up, often a separation, blowing bubbles. But because it’s structured and because the therapists who are carrying it out are doing it repeatedly, they become skilled in noticing things that are out of the ordinary. So something that might appear subtle and unremarkable to somebody who’s not trained to use the procedure can be used as an indication of problems. Now again it’s really important to note that you don’t get a score out of 10 and pass or fail on this. It elicits information and in the process we create a videotape which is then reviewed by more senior members of the team and a discussion takes place to place the observations in the Cromwell procedure into the context of every other part of the assessment that’s taken place.
Dr Jureidini went on to say that the Cromwell procedure carried out in respect of the appellant and TKV contributed to an overall conclusion that due to the combination of the damage experienced by TKV, the positive nature of the current foster care arrangement, the problems in the mother-infant relationship, and the lack of a yet properly developed sense of responsibility for the damage done to the child, reunification could not be supported.
Dr Jureidini was of the opinion that a 12-month order would be inadvisable and that a clear decision needed to be made. Dr Jureidini said that the possibility of reunification had been “given a really good go and we should now say, no”.
Under cross-examination, Dr Jureidini acknowledged that he knew that the appellant had been involved in a number of parenting classes but had not seen a report of any therapeutic activity. Dr Jureidini’s evidence was that unless exposure to a parenting class led the parent to make some personal level change, parenting classes in and of themselves would not lead to an increased parenting capacity. Further, Dr Jureidini stated that it was the view of those involved in the assessment process that by the time the assessment was being conducted, reunification was no longer in TKV’s best interests, even if the appellant was able to demonstrate parenting capacity at that time, which Dr Jureidini did not concede that she had. It was his view that remaining with her current carers would give TKV the best chance in life. Dr Jureidini acknowledged that while there had been genuine change on the part of the appellant, it was not sufficient for it to be in TKV’s best interests to be back in the appellant’s care. He said that he had seen no evidence of any change in the appellant’s parenting capacity since his last assessment at the beginning of 2018 and that the evidence available was that the relationship with the appellant was still dangerous for TKV. He explained that the bar in terms of parenting capacity has to be set higher the more damaged or vulnerable the child is as there is restorative work to be done in addition to raising the child.
Dr McEvoy’s evidence
Dr McEvoy qualified as a child psychiatrist in the early 1990s and has worked predominantly in public child and adolescent mental health. She was the clinical director of the Child and Adolescent Mental Health Service for five years prior to taking on a role with the Department to offer expertise and expert advice to them, a role she held at the time of giving evidence at the trial. During 2016 and 2017, Dr McEvoy worked in the infant mental health and therapeutic reunification service.
On 26 May 2016, Dr McEvoy initially saw and assessed the appellant and co‑authored a report as a consequence with Dr Jureidini, who had assessed SP on 30 May 2016. Dr McEvoy saw the appellant in 2016 and 2017 and also saw TKV.
The upshot of Dr McEvoy’s evidence was that she did not believe, at the time of her assessments, that the appellant had capacity to make the necessary changes to attempt reunification with either of the children. In Dr McEvoy’s opinion, the appellant displayed a total lack of reflective capacity. She explained that attending parenting courses may be good for people with parenting capacity, but for people with poor parenting capacity it does not work. Parenting capacity can only be enhanced by psychological therapy, and there is no evidence that the appellant has undertaken any such therapy.
In Dr McEvoy’s opinion, it was extremely unlikely that the distress exhibited by TKV after access visits with the appellant, provides any indication that TKV wants to stay with her mother. Dr McEvoy states in her evidence that the immediate return of TKV to the appellant’s care would be a very bad outcome for TKV. In Dr McEvoy’s opinion, both children need stability and to know where his or her home is going to be.
Although Dr McEvoy conceded that the last time she had seen the appellant was in 2017, she noted that she did not appear to have developed any further when seen by Dr Jureidini in 2018.
Both Dr Jureidini and Dr McEvoy expressed the united view that it was time for long term placements for the children to be ordered in order to provide them with safe and stable long-term care. Both were of the opinion that reunification should not proceed.
After her assessment of the appellant on 24 April 2017, Dr McEvoy found there was no fundamental change in her reflective capacity or her understanding of her parenting deficits.
In his report dated 12 April 2018, following a further assessment of the appellant in December 2017 and January 2018, Dr Jureidini summarised his opinion as follows:
[The appellant] has made very significant advances in terms of her drug use and personal functioning. However, assessment, both individually and in her interaction with her infant, demonstrated significant ongoing concerns about her parenting capacity. Sadly, her relationship with [TKV] is very disturbed and while she takes some responsibility for this, the disruption to [TKV] if reunification was attempted would be another trauma. Both children have now been out of her care for a long period of time and [the appellant] continues to struggle to recognise the role she has played in their traumatic experiences. We remain concerned that while her level of functioning has significantly improved in relation to herself this does not mean that her reflective capacity has changed enough for her to be an attuned parent for children who have experienced such trauma.
Given this degree of trauma experienced by the children and their developmental needs, we recommend against reunification and for long‑term orders.
It can be seen from the foregoing that the report of Dr Tustin did not really address the critical issues before the court at first instance. Dr Tustin was never asked to address the appellant’s parenting capacity or the attachment which the children had to their current carers. He did not observe or assess the children’s behaviour, either pre- or post-access. He spent a very short time only in his examination of the appellant and each child of not much more than one hour.
It appears from his reports that Dr Tustin was heavily reliant on information provided by the appellant. It is not clear from his reports what other, if any, documentary evidence he relied on in making his assessments.
The protocol for assessment of parenting capacity has been published in the Australian Government Gazette. It is designed to enhance the reliability of any assessment. Dr Tustin’s reports did not comply with that process, nor do they clearly identify why he made the recommendation of co‑parenting, which is not supported by the legislative scheme.
Dr Tustin did not consider any of the relationship issues between the appellant and the children’s current carers. His conclusions were not supported with any explanation, nor did he appear to have considered any alternative conclusions.
It seems that Dr Tustin’s reports proceeded on the assumption that there is a relationship between the appellant and both children, and that the children should be returned to her. I note that the children have been in their current placement since April 2016. At the time of argument, a period of nearly four years has elapsed.
Both counsel acting for the first respondent and counsel acting on behalf of the children’s representative submitted that I should not receive the evidence of Dr Tustin on appeal for the purpose of determining the appeal. In making that submission both counsel relied on a number of previous decisions of this Court[4] and the High Court’s consideration of the statutory powers of the Full Court of the Family Court in CDJ v VAJ (No 1).[5]
[4] M, L v Minister for Education and Child Development [2018] SASCFC 131; H, JR v Department for Child Protection & Anor [2017] SASC 121 (Nicholson J); H, A v Minister for Families and Communities; H, J v Minister for Families and Communities [2005] SASC 339 (White J).
[5] (1998) 197 CLR 172.

I note that in the recently decided case of M, L, the Court stated:[6]
[25]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. In the exercise of that discretion, the critical factor is the subject matter of the proceedings. For that reason, the need for finality in litigation does not necessarily apply especially in cases that concern the welfare of children. The discretion is ‘more ample’. Importantly, further evidence can also be received to buttress findings already made. McHugh, Gummow and Callinan JJ explained, with respect to parenting orders made in the Family Court:
The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ‘custodian’ of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[Citations omitted]
[6] M, L v Minister for Education and Child Development [2018] SASCFC 131, [25].
In the end, I did not accede to the submissions of the respondents’ counsel and have considered the reports of Dr Tustin and made an assessment as to whether, taken at its highest, the reception of Dr Tustin’s opinions would have produced a different result if it had been led at the trial.
For that purpose, I have considered the evidence proposed to be led from Dr Tustin in the light of the evidence given at trial by both Dr Jureidini and Dr McEvoy.
As can be seen from that analysis above, the reports of Dr Tustin failed to address, or even purport to address, the critical issues at the hearing of the Chief Executive’s application.
For the reasons which I have given, it is plainly obvious that Dr Tustin’s opinions, even if accepted, would not have made any difference to the conclusions reached by the Magistrate.
Therefore, I consider that although the reports should be received and considered in the interests of justice, their reception would not have made any difference to the outcome. The failure to call Dr Tustin has not resulted in a miscarriage of justice. I dismiss this ground of appeal.
Conclusion
The appeal is dismissed.