KM v Chief Executive of the Department of Child Protection - [2021] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
KM v CHIEF EXECUTIVE OF THE DEPARTMENT OF CHILD PROTECTION & ORS
[2021] SASC 9
Judgment of the Honourable Justice Lovell
8 February 2021

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT
Appeal against a decision from a Magistrate of the Youth Court. The first respondent applied to the Youth Court for long-term care and protection orders placing three children under its guardianship until they each attain 18 years of age. The application was opposed by the appellant, who is the children's maternal grandmother. The appellant has drug and mental health issues, and is in generally poor health. The trial was lengthy. Upon closure of the first respondent's case and following numerous adjournments at the request of the appellant, the Magistrate exercised his discretion to finalise the matter before oral evidence was led by the appellant. The appellant contends that the Magistrate failed to apply the rules of evidence, made errors of fact, denied her natural justice, and lacked jurisdiction to make the orders he did.
Held, dismissing the appeal:
The appellant failed to demonstrate any error in the Magistrate's approach.
Children and Young People (Safety) Act 2017 (SA) ss 50, 53, 56, 59, 62; Family Law Act 1975 (Cth) ss 4, 69ZK; Family Law Regulations 1984 (Cth) s 12B; Uniform Civil Rules 2020 (SA) s 214.2; Youth Court Act 1993 (SA) s 22; Youth Court (Care and Protection) Rules 2018 (SA), referred to.
Fox v Percy (2003) 214 CLR 118; Jones v National Coal Board [1957] 2 QB 55; Lee v Lee (2019) 266 CLR 129; M, L v Minister for Education and Child Development [2018] SASCFC 131; Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298; Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Lam (2003) 214 CLR 1; Seltsam Pty Ltd v Ibrahim Ghaleb [2005] NSWCA 208; Stead v State Government Insurance Commission (1986) 161 CLR 141; Stokes v Ragless [2019] SASCFC 31; Sullivan v Department of Transport (1978) 20 ALR 323; Taylor v Hayes (1990) 53 SASR 282; Victims Compensation Fund Corporation v Nguyen & Anor (2001) 52 NSWLR 213, considered.

KM v CHIEF EXECUTIVE OF THE DEPARTMENT OF CHILD PROTECTION & ORS
[2021] SASC 9

Civil

LOVELL J:
Overview
The appellant is the maternal grandmother of three young children K, M and A who, for some years, had been involved in the care of K and M. The appellant, who has drug and mental health issues, is in generally poor health. The children were removed from her care following allegations of abuse, neglect and inadequate care. The Chief Executive of the Department of Child Protection (‘DCP’), the first respondent, applied to the Youth Court for an order that the children be placed under the care of the respondent until they attained 18 years of age. The children are currently aged 7, 6, and 4.
Neither biological parent opposed the application. The appellant opposed the respondent’s application and sought various orders for the children to be returned to her care. The Youth Court made the orders sought by the respondent.
The appellant contends the guardianship order of the Youth Court should be set aside and the children be returned to her care. The appellant submitted that the decision of the Magistrate, and the legal process generally, were “unfair”. The perceived unfairness underpins the various grounds of appeal which include allegations that the Magistrate failed to apply the rules of evidence, made errors of fact and denied her natural justice. The appellant also argued that the Court lacked the jurisdiction to make the orders it did.
For the following reasons, I dismiss the appeal.
Background
The Youth Court proceedings concerned a trial for long-term guardianship orders under s 50 of the Children and Young People (Safety) Act 2017 (SA) (‘the Safety Act’). On 14 February 2019, the DCP made an application pursuant to s 53(1)(g) of the Safety Act for K, M and A to be placed under its guardianship until they attain 18 years of age, respectively. The application aligned with the expiry of a three-month care and protection order made on 20 November 2018. Interim orders were made on 19 February 2019 placing all three children under guardianship pending the resolution of the application.
The DCP has been involved with the family since 2014 in response to allegations of family violence, neglect and parental substance abuse. Each of the children suffer developmental delays resulting from abuse, trauma and neglect. The DCP considered that the parents’ and appellant’s insight and attentiveness to the special needs of the children was limited.
Neither of the children’s biological parents contested the application. The mother consented to the proposed guardianship order on a no-admission basis; the father has not attended court despite being duly served with the relevant documents. The appellant was joined as a party given she stood in loco parentis of K and M who had been her care from June 2015 to October 2018. As the appellant maintained her objection to the application the matter proceeded to trial on 13 August 2019.
By consent, final orders were made on 19 July 2019 for the youngest child, A, to be placed under the guardianship of the DCP until she attains 18 years of age. The appellant was present at the hearing and, at the time, was legally represented by Ms Matson. Despite the appellant’s desire to care for all three children, Ms Matson conceded that the appellant did not stand in loco parentis of A and did not have standing to contest the orders sought. The matter concerning A was finalised and the trial that commenced on 13 August 2019 concerned only K and M. The appellant now alleges she did not consent to that order.
The trial
It is important to understand the difficulties facing the Magistrate in conducting and finalising the trial. The following history was obtained from the Magistrate’s thorough and careful judgment.
The trial was a protracted and staggered affair. The appellant often failed to attend Court, did not comply with filing deadlines, and struggled to retain legal representation. The trial commenced on 13 August 2019 and proceeded on 30 September 2019, 5 December 2019 and 17 January 2020. The appellant was represented on the first three occasions, but due to funding issues, was unrepresented thereafter. The first respondent presented evidence of the alleged drug use by the appellant, her general parenting abilities, and the special needs of the children arising from their trauma experiences and development delay. The first respondent closed its case on 17 January 2020. The trial was listed to continue on 27 March 2020.
Between 17 January 2020 (when the first respondent closed its case) and 11 September 2020 (judgment delivery), the appellant sought numerous adjournments citing attempts to obtain legal representation or because of her poor health. She did, however, file a response to the application and an evidence synopsis outlining the proposed witness evidence.
On 27 March 2020, the appellant attended by telephone link and requested an adjournment of the trial due to her ill health and the ill health of a witness; she did not have legal representation. The appellant said that she had been unwell for two or three weeks, with symptoms of sneezing, coughing, low blood pressure, blurry vision, fatigue and feeling faint. The appellant stated that she had not been to see a doctor because she had no means of transport; she needed to use a “walker” and her doctor’s surgery was too far from her home to walk. COVID-19 restrictions meant that the trial was adjourned for longer than might otherwise have been the case, to 10 July 2020.
On 2 July 2020, the appellant forwarded to the Youth Court, by email, an interlocutory application in which she requested the following orders:
(1) That this matter be adjourned Sine Die and set down for a fresh date as the Applicant is currently in hospital and has no legal representation.
(2) Alternatively: That the current trial be adjourned.
A Certificate of Sickness was forwarded with the application stating in effect that due to a “medical condition” the appellant was unfit to attend work from 29 June 2020 until 10 July 2020, inclusive. The application was listed for 6 July 2020 but as contact could not be made with the appellant, it was relisted for 8 July 2020.
On 8 July 2020, the appellant did not attend, even by telephone, and counsel for the first respondent provided the Court with a Discharge Summary from the Queen Elizabeth Hospital confirming that the appellant had been in hospital for several days, and was discharged on 3 July 2020. The Discharge Summary stated that the appellant had complained of feeling unwell for “a few months” with tiredness, dizziness, night sweats and light-headedness. The appellant was given an iron infusion and further investigations were planned. Based on that information, the Magistrate vacated the trial date of 10 July 2020 and adjourned the matter for a status conference on 21 July 2020. The appellant was notified of this by email, and on 17 July 2020 she emailed the Court as follows:
Please be advised that my attending medical Practitioner has booked me off sick for 6 (Six) week’s from 5pm Friday, 10th July 2020. Accordingly I will be unavailable to attend any further proceedings, phone calls or correspondence until such time, or longer if my treating Doctor extends my condition therefore otherwise.
At the status conference on 21 July 2020, the appellant did not attend, even by telephone. Both counsel for the first respondent and counsel for the children submitted that it was not appropriate to further adjourn the matter and asked that the Magistrate bring the matter to conclusion. Despite those submissions the Magistrate adjourned the status conference to 6 August 2020. At the Magistrate’s direction, Registry wrote to the appellant advising her of the further status conference listing, and that she must provide a medical certificate explaining her failure to attend Court on 21 July 2020 and her inability to attend Court for 6 weeks from 10 July 2020. Further, the appellant was informed that the Court would consider finalising the matter on 6 August 2020. She was invited to attend by telephone link, to provide written submissions, and to engage legal representation.
The appellant subsequently forwarded to the Court a letter from a Dr Haydn Johns dated 10 July 2020 stating that the appellant:
has recently been in hospital with severe anaemia and has needed blood and iron transfusions. She is awaiting further investigational procedures to assess why she became so anaemic. Due to this illness with ongoing lethargy and the impending investigations, she is unfit to participate in legal proceedings for the Courts for some time. I suggest review in six weeks.
That letter was attached to a written submission by the appellant stating that she was not currently fit to attend Court and would not be attending on 6 August 2020, even by telephone. The appellant stated that she objected to the trial being either aborted or concluded with final orders and that for the Court to do so would be improper. She stated that her medical condition was not terminal, and that she would be fit to continue with the matter in due course. Somewhat surprisingly the appellant also stated that there was no urgency to conclude the matter and that if she were fit enough to engage legal representation, she would also be able to attend Court. She added that to conclude the matter in her absence would be “discriminatory, highly objectionable and offensive”.
At the status conference on 6 August 2020, over objections from both counsel for the first respondent and counsel for the children, the Magistrate adjourned the status conference to 25 August 2020 to allow the appellant a further chance to produce evidence supporting her application to adjourn the trial. The first respondent was to attempt to obtain further information about the appellant’s medical condition and also further information about the children’s placements.
On 24 August 2020, the appellant emailed the Court to advise she would not be attending on 25 August 2020, and she attached a further letter from Dr Johns, dated 24 August 2020, which stated as follows:
[the appellant] has a medical condition and will be unfit for court proceedings from 24/08/2020 to 20/09/2020 inclusive.
She should be able to resume on – possibly 21/09/2020.
[She] is awaiting gastro-intestinal investigation procedures at QEH – her previous appointment for these was cancelled due to a cold, she is awaiting another date for this. [She] also has to undergo dental procedures soon.
The appellant did not attend Court on 25 August 2020. The Magistrate adjourned the matter for judgment to be delivered on 27 August 2020 but then adjourned it until 11 September 2020 to allow the children an opportunity to directly express their views pursuant to s 62 of the Safety Act. As it transpired, the Magistrate decided not to interview the children.
Magistrate’s findings
The Magistrate relied upon the evidence of Ms Ranford, who holds, amongst other qualifications, a Masters Degree in Nursing Studies and in Child and Family Health; her speciality is child development. The Magistrate found her appropriately qualified to express her opinions which were that K and M were developmentally delayed particularly in areas of communication, problem solving, and personal and social skills.
The Magistrate also relied upon the evidence of Ms Zoanetti, a psychologist. Ms Zoanetti had the benefit of interviewing all the children, the biological parents and the appellant. She also had access to the first respondent’s notes (amongst many other documents) and drug test reports related to the appellant.
Ms Zoanetti noted that when interviewed, the appellant’s account of her substance abuse was vague. The appellant described a pattern of drug use suggesting that she relied on methamphetamines during times of stress. However, her account of her methamphetamine use was inconsistent with a hair follicle test completed in late 2018. Levels of methamphetamine found during this test indicated daily methamphetamine use. Further, the result of a urine drug screen test after a family contact on 10 January 2019 was positive for methamphetamine. In her evidence synopsis, the appellant stated that she “inadvertently” consumed methylamphetamine on New Year’s Day 2019. Despite these test results, the appellant continued to deny recent methamphetamine use to Ms Zoanetti.
When interviewed, the appellant denied that she had an issue with anger. She said she never became irritated with the children and denied verbally abusing K and M or swearing in front of them. The appellant’s account was contradicted by the evidence of Ms Masters, the Director of Emali Early Learning Centre, who overheard the appellant threatening the children and swearing at them apparently over some milk that had been spilt on the floor of the kitchen. Ms Masters immediately reported that incident to the DCP. Ms Masters gave evidence at the trial.
Ms Zoanetti considered that the appellant did not have the parenting capacity and ability to provide her grandchildren with appropriate care. The appellant’s inability to acknowledge child protection concerns, her methamphetamine use, her compulsive personality traits and her demonstrated limited protective capacity meant that she was not in a position to provide the level of care to the children that they required. Ms Zoanetti considered that the appellant was not able to make sufficient changes to her parenting to enable reunification with the children to occur in a timeframe commensurate with the children’s needs.
The Magistrate accepted the evidence of Ms Zoanetti. He considered her analysis was thorough and her presentation was impartial. In particular, the Magistrate accepted her evidence that the children’s developmental delays and their emotional and behavioural problems, at least in some degree, had been caused by the appellant’s inability to care properly for them. The Magistrate accepted her evidence that the children’s attachment relationship with the appellant was unhealthy.
Decision to finalise the matter
On 11 September 2020, the Magistrate finalised the matter and ordered that K and M be placed under guardianship of the DCP until they respectively attain the age of 18 years. Consequently, at the close of the evidence the appellant had not called any witnesses despite initially identifying potential witnesses, namely family and friends who would attest to her good character and fitness to care for the children.
The Magistrate noted that the Safety Act and Youth Court (Care and Protection) Rules 2018 requires that applications of this type are to be dealt with in a timely manner.[1] Further, proceedings under the Safety Act are to be dealt with expeditiously and should, as far as practicable, continue without adjournment until all evidence is presented, and judgment should be delivered as soon as practicable after all evidence has been presented.[2] The Magistrate held the matter should be finalised, in the appellant’s absence, for the following reasons:
·The first respondent bore the evidentiary onus to show why the guardianship order was appropriate; the Magistrate was satisfied the evidentiary onus was met. The appellant, having objected to the orders sought, then bore the onus of proving why the guardianship order should not be made pursuant to s 59(2) of the Safety Act;
·There was sufficient evidence before the Court to anticipate the appellant’s case, if she were well enough to present it. It was apparent that the evidence intended to be led would not overcome the first respondent’s case;
·Compelling evidence was given that time was of the essence to prevent ongoing harm to the children, all of who had suffered harm as a result of trauma and neglect, and experienced development delays that required therapeutic treatment;
·Neither the appellant nor her medical practitioner could provide any assurance that the appellant would be well again in the foreseeable future. If, as the appellant advised, she was so unwell as to participate in the proceedings (even by telephone or through a lawyer), the Magistrate concluded she must also be too unwell to care for the children, particularly given their special needs that require significant, consistent attention.
[1] Chief Executive of the Department for Child Protection v RM & Ors (Youth Court of South Australia, Magistrate Koehn, 11 September 2020) at [21]–[22], [24] (‘Reasons’).
[2] Safety Act s 56.
The Magistrate found that the appellant’s care of the children was, at the very least, suboptimal. He found that the children’s urgent need for therapy meant they could not wait any longer. The children continue to suffer the cumulative effects of harm they have experienced and are likely to continue to suffer into the future. The Magistrate considered that the first respondent had not only satisfied the evidentiary onus but had presented an extremely compelling case for the making of a long-term order. The Magistrate considered that the appellant had provided the Court with sufficient material to enable him to anticipate the nature of her response to the application and the evidence that she would have called if she were well enough to do so. Relying on that response and anticipated evidence, the Magistrate found that the appellant would not be able to prove to his satisfaction that the orders sought should not be made.

Against that background, I turn to the grounds of appeal.
The appeal proceedings
The appellant appeals the entire orders made by Magistrate on 11 September 2020. She seeks an order from this Court to set aside the orders of 11 September 2020 and an order that all three children be placed in her care.
Grounds of appeal
The grounds of appeal are difficult to follow but may be summarised as follows:
1.The Magistrate erred in law by failing to apply the rules of evidence and the appropriate rules of practice and procedure;
2.The Magistrate erred in law by exercising power beyond his jurisdiction;
3.The Magistrate erred his findings of facts; and
4.The Magistrate failed to afford the appellant natural justice.
Procedural history on appeal
The appellant, first respondent, and Independent Children’s Lawyer are the only parties who have participated in the appeal proceedings. K and M were joined as the fourth and fifth respondents, respectively, by an application of the Independent Children’s Lawyer.[3]
[3] Pursuant to r.214.2(2) of the Uniform Civil Rules 2020.
Throughout the proceedings in the Youth Court and on appeal in this Court, the appellant has struggled to retain legal representation and has continued to suffer from ill health. The Notice of Appeal was prepared and filed by the appellant without legal representation. On 5 November 2020, the morning of the appeal hearing, the appellant filed an interlocutory application seeking, amongst other things, an adjournment of the appeal to allow her to obtain legal representation. The appellant was unable to be physically present in Court due to suffering “COVID” like symptoms; she appeared by telephone. I granted the appellant a week-long adjournment. On the next occasion, the appellant failed to attend. The Court made telephone contact with her and she sought, and was granted, a further adjournment for her to obtain legal representation; she was unable to obtain legal representation. A further interlocutory application filed 30 November 2020 sought orders to “abort” proceedings or in the alternative, adjourn proceedings. On 1 December 2020, I refused the application to adjourn the appeal and so the appeal proceeded. The appellant appeared by telephone and relied, largely, upon her written submissions.
The appellant submitted, in relation to a number of the grounds, that “due to time and technical constraints, I do not have time to deal with this part of my submission”. The appellant’s further written submissions largely repeated her initial submissions, albeit expanding upon the ground relating to jurisdiction. The appellant sought to amend her grounds of appeal but the further written submissions were difficult to understand and, in my view, irrelevant to the issues on appeal. Further, the appellant provided no sufficient reason for the late amendment. I invited the appellant to make further submissions orally; she was unable to substantiate why the grounds should be allowed to be amended, particularly at such late notice. I refused the application and the appeal proceeded on the original grounds as filed on 30 September 2020.
I invited the appellant to make oral submissions in support of each of her grounds of appeal; she did not wish to make any further substantial submissions and sought to rely largely upon her written submissions. It was evident that the appellant’s grievance was based upon her perception that the outcome of the Youth Court proceedings, and the legal process generally, were simply “unfair”.
Standing in relation to child A
The appellant contends that she was never informed that any and all matters concerning A were disposed of by consent; she was misled to believe that the trial concerned all three children. For the following reasons, it cannot reasonably be said that the appellant was so misled.
The appellant and her counsel, Ms Matson, were both present at the hearing on 29 July 2019 when final orders with respect to A were entered. Ms Matson conceded that the appellant had no standing with respect to A as she was not in loco parentis of A.
The appellant was present via telephone at subsequent hearings when reference was made to the final orders concerning A. The orders of the Youth Court (of which the appellant would have had, through her legal representative, a copy) clearly establish that final orders had been made regarding A and A’s name was “deleted” from the amended application thereafter. The evidence synopsis prepared by the appellant herself referred only to K and M; the synopsis did not include any reference to A.
The appellant has not particularised how she was misled to believe the trial concerned all three children, save for complaints of poor communication between herself and her counsel. At the appeal hearing, the appellant conceded that she was now aware that she was not a party to the proceedings in relation to A. However, she maintains that at the time, she did not understand this to be the case. This is a separate issue between client and counsel. The appellant does not have standing with respect to A on appeal.
Extension of time
The appellant requires an extension of time to appeal against the order made on 29 July 2019 concerning A. As discussed, the appellant does not have standing in respect of A on appeal. Therefore, the question of an extension of time to bring the appeal in relation to A falls away.
Consideration
The appeal provided for by s 22 of the Youth Court Act 1993 (SA) is by way of a rehearing. The Court has the power to receive further evidence. 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.[4]
[4] M, L v Minister for Education and Child Development [2018] SASCFC 131 at [25].
The appellate court must conduct a real review of the evidence and the judicial officer’s findings and reasons. On issues involving the assessment of the truthfulness, credibility and reliability of a witness, the appellate court must make due allowance for the advantage held by the judicial officer in seeing and hearing the witnesses. Appellate restraint in interfering with a judicial officer’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” relates to those findings which are likely to have been affected by impressions formed by the judicial officer having heard and seen the witness give evidence.[5] However, the appellate courts are not excused from the tasks of weighing conflicting evidence and drawing their own inferences and conclusions from undisputed evidence or the findings of the judicial officer.[6] The fact that a judicial officer may have reached their conclusion by an acceptance of a witness’s evidence does not prevent the court carrying out its statutory function. If the appellate court concludes that the judgment is wrong, it must overrule it.[7]
[5]     Lee v Lee (2019) 266 CLR 129 at [55].
[6]     Lee v Lee (2019) 266 CLR 129 at [55]–[56].
[7]     Fox v Percy (2003) 214 CLR 118; Taylor v Hayes (1990) 53 SASR 282.
The present appeal as it concerns K and M is by right.[8] The order made under s 53 of the Safety Act involves an exercise of the Court’s discretion. The paramount consideration when administering the Safety Act is ensuring children and young people are protected from harm.[9] This Court may only overturn such a decision where it is satisfied that there was an error in the exercise of the discretion.
[8] Youth Court Act 1993 s 22(1).
[9] Safety Act s 7.
Ground 1
The appellant submits the Magistrate failed to apply the rules of evidence, practice and procedure to the trial. The appellant struggles to particularise this ground of appeal. The appellant’s complaint centres around the Magistrate’s decision to finalise the matter prior to hearing oral evidence led by her. I interpret this ground as the appellant alleging a lack of procedural fairness and it is inextricably linked with Ground 4.
The general principle is that everyone is entitled to a fair trial or hearing.[10] But not every departure from the rules of natural justice at a hearing will entitle the aggrieved party to a new hearing. An appellate court will not order a new hearing if it would inevitably result in the making of the same order as made by the judicial officer at the original hearing.[11] The judicial obligation relating to procedural fairness is concerned with a reasonable opportunity to present or meet a case. Such an opportunity is vital both to the reality and the appearance of justice.[12] Although the basis on which the parties conduct a trial or hearing does not bind the judicial officer, if the judicial officer contemplates determining the case on a different basis, they must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. Fairness is not an abstract concept and the concern of the law is to avoid a practical injustice.[13] It must be remembered that procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that a tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”.[14] A relevant enquiry is whether a party or their legal representative should reasonably have apprehended that the issue was or might become a live issue.[15]
[10] Stokes v Ragless [2019] SASCFC 31 at [16 ff]; Jones v National Coal Board [1957] 2 QB 55.
[11] Stead v State Government Insurance Commission (1986) 161 CLR 141.
[12] Seltsam Pty Ltd v Ibrahim Ghaleb [2005] NSWCA 208.
[13] Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Lam (2003) 214 CLR 1 at [37].
[14] Sullivan v Department of Transport (1978) 20 ALR 323, 343; see also Victims Compensation Fund Corporation v Nguyen & Anor (2001) 52 NSWLR 213, 219–220.
[15] Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298 (Gaudron J).
The Magistrate, as he was entitled to do, accepted the oral evidence presented by the first respondent’s witnesses. Three out of the four witnesses called by the first respondent were subject to vigorous cross-examination by Ms Matson, counsel for the appellant. The appellant herself cross-examined the final witness. The appellant was not denied any opportunity to challenge the evidence presented by the first respondent’s witnesses. The Magistrate concluded that the first respondent’s witnesses were credible, and accepted their evidence, which in combination with the two volumes of documentary evidence established a compelling case.
On appeal the appellant was unable to demonstrate error in the Magistrate’s approach. The Magistrate had the benefit of hearing and seeing the witnesses. The inferences drawn by the Magistrate were clearly open. I would go further; not only were the inferences open, they were the only inferences that could be sensibly drawn in the circumstances. The first respondent’s case was overwhelming that the order should be made.
The appellant bore the onus of proving why an order as sought should not be made. A period of nearly eight months lapsed between the closing of the first respondent’s case and judgment delivery wherein the appellant failed to comply with orders made by the Magistrate, and failed to attend Court. The appellant had filed a response and an evidence synopsis identifying the appellant’s son, a neighbour, three friends and the appellant’s drug counsellor as proposed witnesses to attest to her character and fitness to care for the children. The procedures and informalities of the Youth Court allow the Magistrate to rely upon the evidence synopsis prepared by the appellant to anticipate the evidence to be led. The appellant’s evidence synopsis provided no suggestion that she intended to lead any expert evidence to contradict the evidence presented by the first respondent. Not only did the Magistrate have compelling expert evidence supporting the first respondent’s case, the appellant, when notifying the Magistrate that she objected to him finalising the case in her absence, stated that there was no urgency in the proceedings. Not only is that a fundamental misunderstanding of the nature of these proceedings, it confirms the appellant’s lack of insight in the need for the care and protection of K and M.
The Magistrate clearly considered that the appellant should be given every opportunity to present her case. However, the urgent need for proper treatment and protection for K and M was paramount, and the Magistrate, having given the appellant every opportunity to finalise the matter, acted correctly in finishing the evidence and delivering judgment. There was no point in further delaying proceedings in circumstances where no evidence that would assist the appellant was to be led.
Further, as identified by the Magistrate, he was not bound by the rules of evidence and was entitled to inform himself as he saw fit in accordance with s 57(a) of the Safety Act.[16]
[16] Reasons at [12].
The Magistrate applied the rules of evidence and procedure correctly and afforded the appellant ample opportunity to participate in the trial process. No error has been demonstrated. I dismiss this ground of appeal.
Ground 2
The appellant contends the Magistrate erred in law by exercising power beyond his jurisdiction. The appellant submits the correct jurisdiction to deal with matters concerning children lies exclusively with the federal courts. The appellant’s submissions as to the purported jurisdictional error are difficult to follow. The appellant submits that because recovery proceedings had been instituted in the Federal Circuit Court of Australia under the Family Law Act 1975 (Cth), the Youth Court had no jurisdiction to make orders concerning the children.
Relevantly, but working against the appellant’s submission, s 69ZK(2) of the Family Law Act 1975 (Cth) provides that:
(2) Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
The Safety Act, under which the orders subject to this appeal are made, is a “child welfare law” for the purposes of s 69ZK of the Family Law Act 1975 (Cth).[17] The Magistrate had jurisdiction to make the orders subject to this appeal. I would dismiss this ground of appeal.
[17] Family Law Act 1975 s 4 definition of “child welfare law”. See also Family Law Regulations 1984 (Cth) reg.12B(1)(e).
Ground 3
The appellant alleges the Magistrate erred in his findings of fact. The appellant submits the Magistrate “did not inform himself, or took no steps to inform himself as to the history of this matter”. Again, the appellant has not particularised any such factual errors giving rise to an appeal. The Magistrate carefully considered the evidence, took into account all relevant matters and clearly articulated the reasons for the orders made. No error has been demonstrated. On review of the evidence, the Magistrate’s findings are clearly correct. I would dismiss this ground of appeal.
Ground 4
The appellant complains the Magistrate failed to afford her natural justice. The appellant has failed to particularise this ground of appeal, save for the repeated assertion that the legal process was “unfair” and that she did not have a chance to “fight” for her case. As discussed earlier, Ground 1 is also linked to this ground in relation to the Magistrate’s application of the rules of evidence, practice and procedure.
Whilst the appellant may understandably feel disappointed at the outcome of the proceedings, that is not a basis for a ground of appeal. In any event, I reject the appellant’s assertion that she was not given the opportunity to “fight” for her case. The appellant was given ample opportunity to present her case. As discussed earlier, the appellant cross-examined the first respondent’s witnesses and was afforded opportunities to challenge the evidence presented. The Magistrate offered assistance as to how the appellant was to conduct her case, granted numerous extensions to file documents, and specifically directed the appellant to file a further evidence synopsis.[18] The appellant rarely complied with any of the orders or suggestions of the Court. Further, the appellant sought, and was granted, a number of adjournments (upwards of 10) following the closure of the first respondent’s case to obtain legal representation or due to her ill health.
[18] Reasons at [15].
In all the circumstances, the decision to finalise the matter was correct and does not amount to a denial of natural justice. The Magistrate was tasked with balancing the appellant’s right to present her case with the paramount consideration of the children’s safety, and timely management of such cases. I would dismiss this ground of appeal.
Conclusion
The decision to finalise the matter and grant the application for long-term guardianship orders for K and M was open to the Magistrate and on my review of the evidence, his decision was clearly correct.
I dismiss the appeal.
Orders
1.The appeal is dismissed.