KM v Chief Executive of the Department of Child Protection

The case of KM v Chief Executive of the Department of Child Protection involved an appeal against a Youth Court decision to place two children, K and M, under the guardianship of the Chief Executive of the Department of Child Protection until they attain 18 years of age. The Department had been involved with the family since 2014 due to allegations of family violence, neglect, and parental substance abuse. The children had developmental delays resulting from abuse, trauma, and neglect. The appellant, who had been caring for K and M from June 2015 to October 2018, objected to the guardianship application. The legal issues before the court included whether the Magistrate had correctly exercised their discretion in finalising the matter in the absence of the appellant, and whether the decision was supported by the evidence.

The court found that the Magistrate had correctly exercised their discretion in finalising the matter in the absence of the appellant. The court held that the Department had satisfied the evidentiary onus to show why the guardianship order was appropriate. The appellant, having objected to the orders sought, bore the onus of proving why the guardianship order should not be made. The court found that the appellant’s care of the children was suboptimal, and the children’s urgent need for therapy meant they could not wait any longer. The court found that the appellant had provided the court with sufficient material to enable it 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. The court found that the appellant would not be able to prove to its satisfaction that the orders sought should not be made. The court held that the Magistrate’s decision was supported by the evidence and that there was no error in the Magistrate’s approach.

The appeal was dismissed, and the orders made by the Youth Court were upheld. The court held that the appellant had failed to demonstrate any error in the Magistrate's approach, and that the appeal had no reasonable prospect of success. The court also found that the appellant was not entitled to an extension of time to appeal against the order made on 29 July 2019 concerning the youngest child, A, as the appellant did not have standing in respect of A on appeal. The court found that the appeal was by right as it concerned K and M, and that the order made under s 53 of the Safety Act involved an exercise of the court’s discretion. The court found that the paramount consideration when administering the Safety Act was ensuring children and young people are protected from harm, and that the court may only overturn such a decision where it was satisfied that there was an error in the exercise of the discretion. The court found that the appellant had failed to demonstrate any such error.