L, G v Minister for Families and Communities
[2012] SASCFC 72
•15 June 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
L, G & ANOR v THE MINISTER FOR FAMILIES AND COMMUNITIES & ORS
[2012] SASCFC 72
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Stanley)
15 June 2012
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - EVIDENCE AND PROOF
The parents of children appealed against orders of a Youth Court Judge placing the children under the guardianship of the Minister pursuant to s 38(1)(d) Children’s Protection Act 1993, the Judge having found that the children were “at risk” pursuant to s 6(2) of the Act.
The appellants asserted that the orders should be set aside because procedural fairness had not been afforded to them, s 45 of the Act had been misapplied with evidence being improperly received, the commission of a number of errors of law, a failure to consider alternatives to the making of the order under s 38(1)(d) of the Act and apparent bias by the Judge.
Held: Appeal dismissed.
(Vanstone, Peek and Stanley JJ): The appellants were given a reasonable opportunity to prepare and present their case and there was no procedural unfairness. The direct and circumstantial evidence in support of the Judges findings and orders was very strong. Section 45 of the Act had not been misapplied and evidence had not been improperly received. There was no appearance of bias by the Youth Court Judge. His Honour correctly found that the children were “at risk” under the Act and the making of the order pursuant to s 38(1)(d) was entirely justified in the circumstances.
Children's Protection Act 1993 (SA) ss 3, 4, 6(2), 37, 38, 45, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336, applied.
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228; Minister for Immigration v Eshetu (1999) 197 CLR 611; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Griggs v Noris Group of Companies (2006) 94 SASR 126; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; McGee v Gilchrist-Humphrey (2005) 92 SASR 100; TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992; Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, discussed.
Brandi v Mingot (1976) 12 ALR 551; Smith v The Queen (2001) 206 CLR 650; Theophillus v Police (2011) 110 SASR 420, considered.
L, G & ANOR v THE MINISTER FOR FAMILIES AND COMMUNITIES & ORS
[2012] SASCFC 72Full Court: Vanstone, Peek and Stanley JJ
VANSTONE J. I would dismiss the appeal. I agree with the reasons of Peek J and with the additional reasons written by Stanley J.
PEEK J. Appeal against orders of Youth Court Judge placing children under the guardianship of the Minister.
Introduction
On 5 July 2010, the Minister for Families and Communities (the Minister) made an application (the application) pursuant to s 37 of the Children’s Protection Act 1993 (the Act) that six children born respectively on 8 November 1998, 20 April 2001, 29 November 2002, 22 April 2005, 22 August 2006 and 20 April 2009 (together referred to as the children) be placed under the guardianship of the Minister until each child attains the age of 18 years.
The appellants, Mr G L and Mrs J-A L, are the parents of the children. The first born child of the parents died in New South Wales in 1998 aged four months.[1] Between the birth of the oldest living child in 1998 and the application by the Minister in 2010, the parents had been the subject of no less than 27 child protection notifications of which eight had been confirmed.[2] In addition, three “Unsanitary Conditions Notices” had been issued by the local council and served on the parents on 23 January 2008, 2 May 2008 and 28 August 2008.[3] It is also the case that in April 2009, the children had been removed from the parents and placed under the care and protection of the Minister for six days.[4] Since 30 April 2009, eight further notifications of neglect were received by the relevant department of which four were confirmed.[5]
[1] That death was investigated by the coroner and the report tendered in the present case: AB 1163.
[2] Report of Department of Families and Communities Services, 1 July 2010: AB 916. See “brief summary of Care and Protection concerns” at AB 918-919.
[3] Report of Department of Families and Communities Services, 1 July 2010: AB 916. See “brief summary of Care and Protection concerns” at AB 918.
[4] AB at 910. See also Report of Department of Families and Communities Services, 1 July 2010: AB 919.
[5] Report of Department of Families and Communities Services, 1 July 2010: AB 916. See “brief summary of Care and Protection concerns” at AB 919.
The application of the Minister
The Minister made an application pursuant to s 37 of the Act which relevantly provides:
37—Application for care and protection order
(1) If the Minister is of the opinion—
(a) that a child is at risk; and
(b) that an order under this Division should be made in respect of the child to secure his or her care and protection,
the Minister may apply to the Youth Court for an order under this Division.
The application of the Minister duly averred that the Minister was of the opinion that the named children were “at risk” and that an order should be made to secure their care and protection. The grounds of the application were stated to be (with references to the statutory section now added) as follows:
1 The children have been abused and neglected. [S 6(2)(a)]
2There is a significant risk that the children will suffer serious harm to their physical, psychological or emotional wellbeing against which they should have, but do not have, proper protection. [S 6(2)(aa)]
3The guardians are unable to care for and protect the children and/or exercise adequate supervision and control over the children. [S 6(2)(c)(i)]
On correct analysis, each of these three grounds allege that the children are at risk by invoking different aspects of the definition section, each of which might, if established as fact, be sufficient to establish that the children were “at risk”. Thus, ground 1 invokes s 6(2)(a); ground 2 invokes s 6(2)(aa); and ground 3 invokes s 6(2)(c)(1). The phrase “at risk” is defined in s 6(2) of the Act thus:
(2) For the purposes of this Act, a child is at risk if—
(aa) there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing against which he or she should have, but does not have, proper protection; or
(a) the child has been, or is being, abused or neglected; or
(b) a person with whom the child resides (whether a guardian of the child or not)—
(i)has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or
(ii)has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or
(c) the guardians of the child—
(i)are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or
(ii)are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child; or
(iii)are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or
(d) the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(e) the child is under 15 years of age and is of no fixed address.
(Emphasis added)
The decision of the Youth Court Judge
On 9 May 2011 Youth Court Judge Prescott (the Judge) found pursuant to s 38(1) of the Act that the grounds of the application had been made out and that the application should be granted.
His Honour came to that conclusion on the basis of a great deal of factual and expert evidence. In what must have been a lengthy task, some of that evidence was assembled in the form of a table of chronology which extends to some 67 pages attached as an annexure to his Honour’s judgment.
The pattern of evidence extending over a number of years paints a damning picture. It is to be emphasised that although there are numerous grounds of appeal, some challenging the admission and use of various items of evidence, no ground suggests that if the body of evidence his Honour acted upon were properly received it could not support the finding that the children were at risk or the orders that he proceeded to make.
As to the expert evidence, his Honour had extensive written and oral evidence of a psychologist, Ms Felicity Linke, who was called by the Minister. His Honour referred to the evidence of this witness thus:
[20]Ms Linke (see Exhibit M1, pp 69 to 147 and 148 to 154) provided two reports. She concluded her second report, dated 8 June 2010, with these remarks:
Opinion
During the previous psychological assessment, the writer stated “Despite more than ten years of attempted interventions from numerous services and agencies to improve the physical condition of the home and to improve aspects of their parenting, Mr and Mrs L have been resistant, minimised concerns, and failed to accept any responsibility or to show any insight into the risks and impact on their children. The extensive history of these concerns suggested an entrenched pattern of neglect that was not amenable to significant or sustained change, despite the provision of multiple, intensive services. Given that the neglect has led to serious consequences for the children’s health and development, and the high likelihood of ongoing abuse and neglect, the writer held significant concerns for the children’s wellbeing should they continue to reside in their parent’s care. Mr and Mrs L’s children have suffered, and are at risk of further suffering, physical and psychological harm that has been detrimental to their wellbeing. Should they continue to reside in their parents’ care, their development and psychological wellbeing would therefore remain in jeopardy. On the basis of the information obtained during the current assessment, the writer was satisfied that neither Mr nor Mrs L are able to provide adequate care and protection for their children and appear unwilling to engage meaningfully with services to address the entrenched issues that continue to compromise their parenting capacity”. (Linke, 4 September 2009, pp 74-78)
With respect to the current situation, despite further intensive intervention, it appears that Mr and Mrs L have made no meaningful progress in addressing their parenting concerns and have been unable to provide their children’s basic care needs, let alone the social, development, educational and cognitive input and support they require to address their delays and ensure their children reach their potential. Information currently available to the writer suggested that despite intensive support, Mr and Mrs L have been unable to maintain their home in a hygienic condition, have been unable to ensure L-A’s mental health needs were met and have generally been unable to meet their children’s education, developmental, social, emotional and attachment needs. Further, the report that Mr and Mrs L continue to blame their children for the unhygienic state of the home suggests that they have been unable to utilise the expertise of professionals to develop insight into their responsibilities regarding their children’s care and that they continue to lack insight into their unrealistic expectations regarding their children’s developmental capabilities.
As a result, the children have continued to experience neglect and have had their safety and other needs seriously compromised. The writer continues to hold concerns that while the children remain in Mr and Mrs L’s care, they will be at significant risk of further harm that will likely compromise every aspect of their psychological well being and potential. This will place children at risk for a host of negative sequelae through childhood and into adulthood, some of which are already apparent. The children require sensitive, emotionally attuned care by emotionally invested caregivers who can provide better than ‘good enough’ care to assist the children to recover from their experiences of abuse and neglect.
His Honour also had extensive written and oral evidence of Mr Broomhall, an independent psychologist who had originally been retained by the parents. When his report was received by the parents the Minister was provided with a copy. The parents decided not to call Mr Broomhall and the Minister then elected to do so. His Honour made very extensive reference to Mr Broomhall’s evidence which is strongly supportive of his Honour’s decision but I do not propose to attempt to summarise it. His Honour concluded:
[21]I find, consistent with the opinions of Mr Broomhall and Ms Linke, that the children who are the subject of this application are “at risk” while they remain in the care of Mr and Mrs L.
His Honour proceeded to find that an order should be made with respect to the children and ordered that the children be placed under the guardianship of the Minister until each child attains the age of 18 years. His Honour acted pursuant to s 38 of the Act which provides as follows:
38—Court’s power to make orders
(1)If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise one or more of the following powers:
(a) the Court may require a parent, guardian or other person who has the care of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive or some other specified person or authority for the duration of the undertaking;
Example—
A parent, guardian or other person could, for example, be required to enter into an undertaking to undergo treatment for drug abuse, to submit to periodic testing for drug use and to authorise the release of information regarding such treatment, and the results of such testing, to the Chief Executive.
(b) the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i) a guardian of the child;
(ii) some other member of the child’s family;
(iii)the chief executive of a licensed children’s residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(iv) the Minister;
(v)any other person that the Court thinks appropriate in the circumstances of the case;
(c) the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d) the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(e) …
(f) the Court may make consequential or ancillary orders—
(i) providing for access to the child; …
(2)Before the Court makes an order giving custody or guardianship of a child to a person who is not a parent of the child, the Court must be satisfied—
(a) that there is no parent able, willing and available to provide adequate care and protection for the child; and
(b) that the order is the best available solution having regard to—
(i)the child’s need for care and protection (including emotional security); and
(ii)the child’s age, developmental needs and emotional attachments.
(2a)If a child is to be placed in guardianship the Court must consider the importance of settled and stable living arrangements for the child and, as a general rule, a long term guardianship order (ie an order under sub-s (1)(d)) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
…
In undertaking the above tasks, his Honour specifically had regard to the objects of the Act as set out in s 3 of the Act which provides:
3—Objects of Act
The objects of this Act are—
(a) to ensure that all children are safe from harm; and
(b) to ensure as far as practicable that all children are cared for in a way that allows them to reach their full potential; and
(c) to promote caring attitudes and responses towards children among all sections of the community so that the need for appropriate nurture, care and protection (including protection of the child’s cultural identity) is understood, risks to a child’s wellbeing are quickly identified, and any necessary support, protection or care is promptly provided; and
(d) to recognise the family as the primary means of providing for the nurture, care and protection of children and to accord a high priority to supporting and assisting the family to carry out its responsibilities to children.
His Honour also had specific regard to the fundamental principles of the Act as set out in s 4 which provides:
4—Fundamental principles
(1) Every child has a right to be safe from harm.
(2)Every child has a right to care in a safe and stable family environment or, if such a family environment cannot for some reason be provided, in some alternative form of care in which the child has every opportunity that can be reasonably provided to develop to his or her full potential.
(3)In the exercise of powers under this Act, the above principles and the child’s wellbeing and best interests are to be the paramount considerations.
(4)In determining a child’s best interests, consideration must be given to following:
(a) the desirability of keeping the child within the child’s own family and the undesirability of withdrawing the child unnecessarily from a neighbourhood or environment with which the child has an established sense of connection;
(b) the need to preserve and strengthen relationships between the child, the child’s parents and grandparents and other members of the child’s family (whether or not the child is to reside with those parents, grandparents or other family members);
(c) the need to encourage, preserve and enhance the child’s sense of racial, ethnic, religious, spiritual and cultural identity and to respect traditions and values of the community into which the child was born;
(d) if the child is able to form and express his or her own views as to his or her best interests—those views;
(e) the undesirability of interrupting the child’s education or employment unnecessarily.
(5)In relation to an Aboriginal child, the Aboriginal Child Placement Principle is to be observed.
(6) A child who is placed or about to be placed in alternative care—
(a) must be provided with—
(i) a nurturing, safe and stable living environment; and
(ii)care that is, as far as practicable, appropriate to the child’s needs and culturally appropriate; and
(b) must be allowed to maintain relationships with the child’s family (including the child’s grandparents) and community, to the extent that such relationships can be maintained without serious risk of harm; and
(c) must be consulted about, and (if the child is reasonably able to do so) take part in making, decisions affecting the child’s life, particularly decisions about the child’s ongoing care, where the child is to live, contact with the child’s family and the child’s health and schooling; and
(d) must be given information that is appropriate, having regard to the child’s age and ability to understand, about plans and decisions concerning the child’s future; and
(e) is entitled to have his or her privacy respected; and
(f) if the child is in alternative care and under the guardianship, or in the custody, of the Minister—is entitled to regular review of the child’s circumstances and the arrangements for the child’s care.
(7)All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
The grounds of appeal
The appellants appeal against his Honour’s orders. The Minister (the first respondent) and the children themselves (collectively the second respondent) support the orders and oppose the appeal. The grounds of appeal (after amendment and the deletion of grounds and paragraphs not pressed at the hearing of the appeal) are as follows:
The learned Judge erred, and the proceedings miscarried in that –
1He permitted the hearing of the application of the Minister for a care and protection order to commence, and to continue, without requiring the Minister to provide adequate notice to the mother and father (“the parents”), with reasonable particulars, of the case against them.
2He refused or failed to allow the parents any or any reasonable opportunity to prepare and present their defence to the application, both before the hearing commenced, and during the course of the hearing.
3 [ABANDONED]
4He received into evidence, and treated as relevant and significant, material relating to the parents’ former home at [W] Street. Evidence of the witnesses Bartosak and Dodd, was in relation to the parents’ former address only and was not relevant to the current living state or ability of the parents. The learned Judge ought to have rejected the tender of the material and refused to allow the Minister to rely on these allegations introduced by the Minister with respect to that material because it was irrelevant to the inquiry, alternatively insufficiently material to the enquiry to justify its introduction, and otherwise unfairly prejudicial. Further or alternatively, the material was introduced without proper notice to the parents.
5He received into evidence, and treated as relevant and significant, material relating to the children’s former schooling at [S] Primary School. Evidence of the witness Alfano was in relation to the children’s former school only and was not relevant to the current state of schooling. The learned Judge ought to have rejected the tender of the material and refused to allow the Minister to rely on these allegations introduced by the Minister with respect to that material because it was irrelevant to the enquiry, alternatively insufficiently material to the enquiry to justify its introduction, and otherwise unfairly prejudicial. Further or alternatively, the material was introduced without proper notice to the parents.
6He received into evidence, and acted upon, photographs of the parents’ home. The Minister tendered photographs taken by witnesses in circumstances where photographs showing alternative views that would have supported the parents’ case were not taken by the witnesses. The learned Judge ought to have rejected the tender of the photographs and refused to allow the Minister to rely on the allegations introduced by the Minister with respect to that material because it was unfair, and/or unfairly prejudicial.
7He received into evidence, and treated as relevant and significant, material relating to the inquest into the death of the parents’ son A, in 1998, without requiring proper notice of the allegations to be given to the parents, and without allowing the parents any or any reasonable opportunity to prepare a response to the material or to the allegations based on that material. The learned Judge ought to have rejected the tender of the material and refused to allow the Minister to rely on the allegations introduced by the Minister with respect to that material because it was irrelevant to the inquiry, alternatively insufficiently material to the enquiry to justify its introduction, and otherwise unfairly prejudicial. Further or alternatively, the material was introduced without proper notice to the parents. The learned Judge ought to have required the Minister to particularise the allegations it made based on the material, and to have permitted the parents a reasonable opportunity to respond to those allegations.
8He permitted the Minister to tender evidence from which he proceeded to infer that the child A-R L had been exposed to “sexualised behaviour” when the Minister had made no such allegation, and provided no particulars of any such allegation. Further or alternatively, it was not reasonably open on the evidence thus tendered to draw that inference, and in particular the learned Judge relied on the unqualified opinions of the witness Magias in doing so.
9 He permitted, and acted on –
a The unqualified opinion evidence of the witness Bartosak as to failure of the parents and the children to engage with mental health support;
b [NOT PRESSED]
c The unqualified opinion evidence of Magias as to indicia of child abuse;
d [NOT PRESSED]
e The unqualified opinion evidence of Magias as to the medical and psychological needs of the children;
f The opinion evidence of a psychologist Linke which was based on anecdotal material not otherwise the subject of evidence before the court;
g The unqualified opinion evidence of the witness Somerfield as to the inability of the parents to implement change;
h The unqualified opinion evidence of Schmidt as to the educational requirements of the children.
10He attached unfair weight to untested, untestable anecdotal (hearsay) evidence. He permitted, and acted on –
a Evidence of the witness Schmidt which had been compiled from other sources and was not the direct observations of Schmidt;
b [NOT PRESSED]
c Evidence of the witness Magias which was not the direct observations of Magias;
d Evidence of the witness Alfano which was not the direct observation of Alfano.
11He misstated or mistook the evidence of the expert Broomhill (called by the Minister although engaged on behalf of the parents) by disregarding, or overlooking Broomhill’s oral evidence.
12 He displayed the appearance of partiality during the course of the hearing:
a [NOT PRESSED]
b By introducing an issue not raised by the Minister in its case, namely the allegation of ‘financial abuse’ by the father of the mother, and then drawing improper inferences in relation to that issue;
c By eliciting evidence from the witness McVeity regarding the proximity of the children’s school to a hotel with gambling facilities, and then drawing improper inferences from that evidence;
d By disparaging the parents by way of mocking commentary on the apparent disparity between the father’s occupation as a cleaner and the allegations of the Minister in respect of the cleanliness of the family home;
e By questioning of witnesses for the Minister in such a way as to demonstrate a pre-disposition towards the evidence of the Minister;
f [NOT PRESSED]
g [NOT PRESSED]
h By introducing the issue of making costs orders against the parents, and then in doing so putting pressure on the parents in respect of preparation of their case;
i Having declined to make any interim custody orders at or before the commencement of the hearing, the learned Judge made interim custody orders in respect of all the children after the sixth day of the hearing upon the basis of the evidence he had heard, and before the evidence in the case, including the evidence on behalf of the parents, had been completed, and the addresses of counsel taken. The learned Judge ought not to have made any interim orders at that time (based as they were on incomplete evidence) and having done so, ought to have disqualified himself from further hearing the application.
j By introducing an issue not raised by the Minister in its case, namely the allegation of the father not providing appropriate assistance in domestic maintenance and the children’s upbringing, and then drawing improper inferences in relation to that issue.
13On the 8th day of the hearing, the learned Judge produced for comment a chronology (now annexed to the Judge’s reasons) which was based on voluminous material introduced by the Minister, including anecdotal reports and statements (that is, hearsay) and unqualified opinions, all of which he received into evidence, and relied on without considering, either sufficiently or at all, whether by reason of source or nature of the material he could or should not attach any significant probative weight to it, having regard in particular to the seriousness of the allegations being made from time to time against the parents. Further or alternatively, the learned Judge treated the factual items in the chronology, and the material upon which the chronology was based, as “uncontested” without affording to the parents a reasonable opportunity to scrutinize and contest it.
14 He misstated or mistook the evidenced about –
a The intervention program;
b [NOT PRESSED]
c The presence of pets in the house;
d The nature, extent and effect of the parents’ ‘depression’;
e The father’s gambling;
f The parents’ attendance at parenting programs;
g Mrs L’s attitudes towards her children;
h Dr Wells’ views of an opinion on the family.
by disregarding or overlooking relevant evidence on those issues.
15He concluded that the father was addicted to gambling, or otherwise tended to use household income for gambling, when, having regard in particular to the seriousness of the allegation, it was not reasonably open to the Judge to reach that conclusion on the evidence; in particular, but without limitation, the learned Judge misapplied the rule in Jones v Dunkel (Brandi v Mingot (1976) 12 ALR 51), and failed to take into account either sufficiently or at all, the further circumstance that the parents had not had a reasonable opportunity to obtain an independent financial assessment and report. Further, or alternatively, the parents were not afforded a reasonable opportunity to obtain an independent financial assessment and report.
16He received into evidence, and treated as relevant and significant out-of-date and/or unsubstantiated evidence from the witness Spicer as to the parents’ finances. The learned Judge ought to have rejected the tender of the material and refused to allow the Minister to rely on the allegations introduced by the Minister with respect to that material because it was irrelevant to the inquiry, alternatively insufficiently material to the enquiry to justify its introduction, and otherwise unfairly prejudicial. Further or alternatively, the material was introduced without proper notice to the parents.
17[NOT PRESSED]
18He failed to consider either sufficiently, or at all, the alternative orders available. If (which is contested) it was appropriate to make any order in the circumstances, the learned Judge should have considered (but did not consider) whether to make orders under s 38(1)(a),(b) or (c) of the Children’s Protection Act 1993 (SA), with consequential orders.
19He attached insufficient weight to evidence of the witnesses as to improvement in the living conditions and parenting abilities of the parents.
Categorisation of the grounds of appeal
I slightly modify the first respondent’s suggested categorisation of the grounds of appeal and will consider the grounds in the following order:
TopicGrounds
Procedural fairness (1), (2), (13)
Evidence(4)-(11), (14)-(16), (19)
Bias(12) and (13)
Error of law (18)
The hearing of the appeal
Some preliminary comments may be made which apply to a number of the grounds of appeal in common. The first comment is that these proceedings are not a criminal prosecution; while there were a large number of factual matters sought to be established in support of the application, it was not necessary that they be established strictly according to the rules of evidence or that they be proven beyond reasonable doubt. Section 45 of the Act provides:
45—Evidence etc
(1) In any proceedings under this Act—
(a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)A fact to be proved in proceedings under this Act is sufficiently proved if proved on the balance of probabilities.
Of course, such provisions have been the subject of discussion in a number of authorities, and it may be accepted that the process by which Courts correctly apply such provisions takes into account considerations such as relevance, reasonableness and reliability. I have regard to those authorities but I consider that some of the present grounds of appeal, and some of the arguments put in support of them, tended to postulate a required mode and standard of proof which was more consonant with a criminal trial than with the present proceedings.
In the same vein, I note that in a number of the grounds of appeal it is asserted, usually in the alternative to a different complaint, that the adducing of evidence was “unfairly prejudicial” or “insufficiently material to the enquiry to justify its introduction” or “more prejudicial than probative of the Minister’s case”. It should be obvious that these phrases are evocative of matters primarily relevant to criminal trials but have no real application to the present proceedings.
The affidavit of Mr Haebich
At the commencement of the hearing of the appeal, Mr Heywood-Smith QC, Senior Counsel for the appellants, sought to tender an affidavit of Mr Haebich, the appellants’ solicitor, affirmed on 1 May 2012. Mr Evans QC, Senior Counsel for the Minister, and Mr Holland, counsel for the children, both opposed the tender. The Court permitted Mr Heywood-Smith to refer to the affidavit but reserved its decision as to whether the affidavit would be received on the appeal. Having now heard all submissions of counsel and considered all other material before the Court I am of the view that the affidavit should not be received on the appeal.
Procedural fairness: grounds (1), (2) and (13) of appeal
Grounds 1, 2 and 13 are relied upon cumulatively to establish procedural unfairness. I will consider grounds 1 and 2 together and then ground 13.
Grounds (1) and (2) of appeal
The essential complaints made under grounds (1) and (2) were that the initial application dated 5 July 2010 gave inadequate notice of the case against the parents; that particulars contained in a letter from the Crown Solicitor dated 31 August 2010 were provided only six days before the trial; that the application was supported by voluminous and technical material such that the appellants generally did not have sufficient time to prepare their case and respond to that of the Minister; and that the trial commenced before the appellants were able to obtain expert evidence to rebut the expert material relied upon by the Minister.
Mr Heywood-Smith submitted that the letter of 31 August 2010 which gave particulars entitled “Issues of Neglect” in fact had the effect of restricting the three ways by which it was sought to prove that the children were “at risk” to one way only, namely by way of that aspect of the definition of “at risk” appearing at s 6(2)(a).
One can understand why the appellants would now wish to interpret the application in that way, but in order to make that submission good, one would have to go so far as to ascribe an intention to the Minister to withdraw the whole of their second and third stated planks of the application as referred to above. This should be seen as highly unlikely.
In my view, the correct interpretation of the letter of 31 August 2010 was that the Minister was only purporting to give particulars of the first plank of the application, namely the facts said to directly constitute “neglect” and thus enlivening s 6(2)(a) – and hence the self-explanatory title to the letter was: “Issues of Neglect”. It can be seen that the second and third planks were couched in more narrow compass than the first plank. By their precise wording, they specifically engaged ss 6(2)(aa) and 6(2)(c)(i) respectively. They were to be distinguished from the first plank which dealt with matters more broadly described as “neglect”, such term needing to be amplified by the particulars which were supplied.
Of course, it may well be that counsel for the appellants could have applied for further and better particulars of the second and third planks under ss 6(2)(aa) and 6(2)(c)(i) and there is no suggestion that the Judge would not have been amenable to hearing such an application. However, the fact of the matter is that no such application was made. It is also important to note that at trial the parents’ counsel did not seek an adjournment by reason of the above matters and nor was a request made for any further particulars at any later time during the trial.
It is necessary to refer to certain further matters to dispel the aura of a rush to judgment that was sought to be promoted at the hearing of the appeal. The first matter is that the requirements of procedural fairness are to be assessed having regard to the relevant statutory context. In the present case, s 39 of the Act imposes upon the Court a ten week limit between the filing of an application and the commencement of hearing of applications under Div 2 of Pt 5. The Court was required to comply with that statutory timetable and the conduct of the litigation must be examined against that background.
The application was filed on 5 July 2010 and served on the parents on the same day. The parents and the children engaged counsel who attended at pre-trial conferences. The parents and the children were represented by counsel from the first return date and throughout the hearing.
Following the application to the Court, the Judge suggested home visits be conducted for four weeks by Families SA from 28 July 2010 and that photographic and video evidence be provided to the Court. I consider that this sort of timetable was necessary if the statutory time frame was to be adhered to. That course cannot be said to have prevented the parents from a reasonable opportunity to prepare for the hearing of the application and may well have provided them with a structure and incentive whereby they could prepare more efficiently.
It is also to be noted that while the trial commenced on 8 September 2010, it was adjourned on a number of occasions mostly to assist the parents. Final submissions were not heard by his Honour until 4 April 2011.
To address a particular matter complained of by the appellants, although the trial started before they had an independent report, the trial was adjourned on 8 September until 11 October 2010 in order to enable Mr Broomhall, the independent expert retained by the parents to assess the methodological foundations of the psychological report relied upon by the Minister and to provide an independent report.[6] The trial resumed on 11 October but, the anticipated report not being available, the trial was later adjourned to 5 November 2010 by which time it was thought that the report would be available. The report was received by the parents prior to 5 November and the Minister was provided with a copy. The parents decided not to call Mr Broomhall, no doubt on the basis of the report’s content and conclusions. The first respondent then elected to call Broomhall.
[6] See AB 19-22; see also AB 506, 507, 509-511, 516-520.
I see no denial or restriction of the opportunity for the parents to prepare and present their case to the Court. The pattern of adjournments afforded the appellants ample time to do so. The appellants’ counsel did not apply for the recall of any witness for further cross-examination. The parents of the children were specifically afforded the opportunity to give evidence but only the mother did so. A further witness for the children, Dr Wells, was able to be retained by the parents and he did give evidence at the hearing.[7]
[7] Evidence of Dr Wells, AB 863-896. I have had regard to his evidence and the submissions of the parties in relation to it.
Further, it cannot be said that the parents would have been overwhelmed by the nature of the allegations made against them or were unused to facing such allegations; far from being a surprise in circumstances amounting to a denial of natural justice, the Minister’s present application was rather to be seen as part of a process that had been continuing for a long time in circumstances of considerable recalcitrance by the parents.
I consider that the parents were afforded an appropriate opportunity to be heard in relation to the application before the Court and were provided with information sufficient to understand and respond to the case advanced by the respondent. I reject grounds (1) and (2) of appeal.
Ground 13 of appeal
On 3 February 2011, some two months before closing addresses, the Judge distributed copies of a chronology that was prepared at his Honour’s direction from material that had been tendered in evidence. His Honour invited comments from counsel. I am not aware of any subsequent complaints about the chronology made by counsel in the transcript and Mr Heywood-Smith did not refer the Court to any.
The appellants complain about the chronology in two separate contexts. The first is in the context of procedural fairness which I will now examine. The second is in the context of alleged bias by his Honour which complaint I will separately examine below in conjunction with ground 12 which also alleges bias.
As to procedural fairness, the complaints appear to be as follows.
First, there is what amounts to a general “shotgun” complaint as to the contents of the chronology in that all of the evidence referred to therein, both as to its receipt and as to his Honour’s use of it, is generally complained of. In my view, the function of the chronology was simply to gather together in an intelligible form the evidence already adduced before his Honour. The contents of the chronology could not, and did not purport to, rise above the evidence upon which it was based. If complaint is to be made as to that underlying evidence, it needs to be directed at clearly delineated items and passages of that evidence and particular identified errors said to have been committed by the Judge in relation thereto.
Second, it is complained that his Honour in his reasons treated factual items matters in the chronology as “uncontested facts”. However, it is notable that when Mr Heywood-Smith was asked at the hearing of the appeal as to whether there is anything in the chronology that is plainly wrong as a matter of construction of the evidence, he stated that there was not. The fact is that by the end of the evidence those entries were indeed “uncontested” in the sense that there was no opposing evidence and his Honour was permitted to accept them as facts pursuant to s 45 of the Act. His Honour also stated that the chronology contained some “matters of opinion which relate to family members to which I have regard”.[8] In the context of the whole of his reasons, this was to say no more than that he had regard to the evidence before him.
[8] Reasons at AB 31, [13].
I reject ground 13 of appeal in its application to procedural fairness.
Grounds (4) to (11), (14) to (16) and (19): reception and use of evidence:
As a preliminary observation, these are grounds to which my general comments above as to the approach to proof generally and to the provisions of ss 45(1)(a) and (b) of the Act particularly apply.
Ground 4 of appeal
The appellants here submit that evidence as to the children’s living conditions in a house in which they had lived before the house in which they resided at the time of the application was “irrelevant” to the enquiry.
As the High Court confirmed in Smith v The Queen,[9] relevance is determined by reference to the facts ultimately in issue which, in the present case, include matters arising from the Minister’s application alleging that the children were “at risk” within the statutory meaning(s) of that term.
[9] (2001) 206 CLR 650, 654 [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
The respondents submit that evidence of the conditions in which the children had been housed in the past is relevant to an overall assessment of whether the children were “at risk” given that s 6(2)(a) provides that a “child is at risk” if there is “a significant risk that the child has been, or is being, abused or neglected”.
They further submit that the broader point is that on such an application the Minister is not to be restricted to establishing only a current state of affairs; it will often be necessary, and was particularly so in the present case, to go back in time so as to consider whether the whole of the conduct of the parents is such as to suggest that the child is “at risk” irrespective of favourable aspects of the current state of affairs. The matter of past and present housing was specifically referred to in the particulars supplied.
I accept the respondents’ submission. I also note that there are various circumstances in which the Act defines children as being “at risk” which operate by reference to past events.[10] The terms of the Act clearly contemplate the reception of evidence as to events in the past in order to assess whether the child is now, or will be, “at risk”. I reject ground 4 of appeal.
[10] See, for example, s 6(2)(b)(ii) of the Children’sProtection Act 1993 (SA).
Ground 5 of appeal
The appellants here submit that evidence as to the children’s attendance at a previous school was “irrelevant” to the enquiry.
As with ground 4, the definition of a child being “at risk” is broad. Section 6(2)(d) specifically provides that persistent absence from school without satisfactory explanation may of itself establish that a child is “at risk”. A close examination of a child’s school attendance over a considerable period, including at previous schools, was clearly warranted and the matter of past and present schooling was specifically referred to in the particulars supplied. The pattern of adjournments afforded the appellants sufficient opportunity to respond to particular evidence adduced in support of this aspect of the Minister’s case.
I reject ground 5 of appeal.
Ground 6 of appeal
This ground is difficult to understand but appears to complain that the Minister relied on photographs taken of the children’s living conditions in circumstances where the photographer might have taken additional photographs which would, or might, have depicted matters in favour of the parents. I note that there was no objection at trial to the admission of the photographs that were in fact taken. There is no suggestion of some form of manipulation of a scene. I reject ground 6 of appeal.
Ground 7 of appeal
This ground makes a number of complaints concerning the evidence in relation to the death of the child A in 1998.
Section 6(2)(b)(ii) of the Act specifically made the evidence relating to the death of the parents’ first child relevant to the present application. The coronial report was tendered as an exhibit at the very beginning of the trial and counsel for the parents did not object to its reception. His Honour requested further information in relation to that report in open Court[11] and the parents were on notice of the potential importance of that report.
[11] AB 306.
Having regard to the various adjournments that occurred, the parents had ample time to consider and to respond to this evidence. At no stage did the parents request particulars of allegations in relation to this evidence or as to its use or relevance.
The parents did not impugn the report. Their only objection was to the further photographic evidence[12] and indeed the basis of that objection is somewhat unclear. I consider that the evidence of the photographs was relevant but, in any event, it is quite plain that it could not have been in any way critical to his Honour’s decision.
[12] AB 406.
I reject ground 7 of appeal.
Ground 8 of appeal
There appear to be several complaints here.
The first complaint is once again as to particulars. The evidence is not suggested to be irrelevant. There was no objection by counsel for the parents at the time that the evidence was led and nor was this matter of particulars raised by counsel during the trial. I reject this aspect of ground 8 of appeal.
The second complaint appears to mainly focus (by reference to the phrase “in particular” in the ground) on the assertion that his Honour relied on the unqualified opinions of the witness Magias in order to draw an inference that the child A-R L had been exposed to “sexualised behaviour”. As I understand the evidence, that particular complaint is factually inaccurate. What occurred is that Ms Olsson called the witness Ms Magias to give evidence, examined her as to her experience and qualifications and tendered her curriculum vitae, all without objection.[13] Ms Olsson then tendered the reports of Ms Magias (which had previously been provided to the parents), again without any objection.[14] Ms Olsson later led from Ms Magias evidence, without objection, that the child A-R was seen to perform a certain unusual act. Ms Magias stated:[15]
The department raised a notification on the system and that was rated and then we had a discussion, strategy discussion, with Child Protection Services and they had stated that this was normal sexualised behaviour. However Ms Linke in her literature had stated otherwise. I’m not a psychologist so I can’t comment further.
[13] AB 561ff.
[14] AB 566.
[15] AB 612.
It can be seen from this passage that Ms Magias was relied upon simply to prove the performance of a particular act by A-R but, as to the significance, if any, of the observed act, Ms Magias simply indicated that there was a difference of view between Child Protection Officers who had stated that this was normal sexualised behaviour and Ms Linke who had stated otherwise.
His Honour was obviously disposed to accept the view that one may infer from that observation of A-R’s behaviour that she had previously been exposed in unknown circumstances to “sexualised behaviour”.
It may be that not everyone would necessarily agree with that conclusion but in my view this evidence and line of reasoning was extremely marginal in the whole scheme of things. His Honour’s comments at [39] of his reasons occur in the course of a sequential review of the whole of the evidence of the parent Mrs L. His Honour makes brief remarks in that context and never returns to the matter. I consider that this matter truly paled into insignificance in the light of the massive body of much more solid and well defined evidence before his Honour that was directly linked with the parents. I note that the very long and detailed table of chronology of some 67 pages (“Annexure 1” to his Reasons) never refers to the above incident.
Even if a small blemish were to arise here, and I am not convinced that that is so, it is clearly insufficient to make out this ground of appeal. Putting aside the evidence referred to in this ground of appeal, the rest of the evidence constituted a combination of such strong direct and circumstantial evidence that the case for the Minister was overwhelming. It is clear that his Honour would and must have come to the same conclusion and made the same orders if the evidence and line of reasoning in this ground of appeal had been excluded.[16]
[16] See generally the decisions collected in Theophillus v Police (2011) 110 SASR 420, 437-440.
I reject ground 8 of appeal.
Grounds 9 and 10 of appeal
It must again be emphasised in relation to grounds 9 and 10 that there was no objection by counsel for the parents at trial in relation to any of the numerous items of evidence referred to therein. Further, on appeal it has not been demonstrated how and/or why such evidence could not, or should not, have been received by his Honour having regard to the provisions of s 45 of the Act.
The respondent submits that the factual findings with respect to the substantive matters of abuse, neglect and psychological issues were based upon expert evidence that was subject to scrutiny by the parties and that those findings were clearly open. I agree. I consider that the reliance upon the evidence of the named witnesses was appropriate in the circumstances. Such reliance was clearly within the “according to equity, good conscience and the substantial merits of the case without regard to technicality and legal forms” formulation.
I reject grounds 9 and 10 of appeal.
Grounds 11 and 14 of appeal
As to ground 11, the appellants assert that his Honour “misstated or mistook” Broomhall’s evidence and “overlooked” his oral evidence. Nowhere is it stated in what ways his Honour “misstated or mistook” or “overlooked” that evidence. Nor is it stated how his Honour’s findings might have been affected if the above largely unstated errors had not occurred.
In my view, having considered the transcript references given by counsel together with his Honour’s reasons, his Honour quite clearly did have regard to the whole of the evidence of this witness and the ground cannot possibly succeed.
As to ground 14, again a broad assertion is made that his Honour “misstated or mistook” the evidence about the various matters set out in placita (a) to (h) by “disregarding or overlooking relevant evidence” on those issues, but the precise ways in which his Honour supposedly “misstated”, mistook” or “overlooked” are not stated.
Again, having considered the transcript references given by counsel together with his Honour’s reasons, I consider that his Honour’s conclusions as to these matters were well open on the evidence and that, as the first respondent submitted, his Honour’s reasons were coherent, intelligible and comprehensive.
I reject grounds 11 and 14 of appeal.
Financial circumstances: grounds 15 and 16 of appeal
Grounds 15 and 16 complain about reception and use of evidence concerning financial circumstances and gambling.
In my view, evidence in relation to the financial circumstances of the family was clearly relevant to the question of whether the children were “at risk” as defined in s 6(2). Such evidence legitimately included the extent to which family finances were (or were not) being, or had (or had not) been, used to provide for the care and protection of the children or, on the other hand, were expended on such things as gambling. The matter of the parents’ income and an unaccounted for budgetary surplus was specifically referred to in the particulars supplied.
For reasons stated elsewhere in this judgment, it was legitimate for his Honour to consider historical evidence as to such matters as well as current evidence.
The appellants particularly complain that his Honour drew an inference at paragraph [25] from the failure of the parents to adduce evidence in relation to certain financial matters that any such evidence would not have helped the appellants’ case. I consider that his Honour’s approach was appropriate in the circumstances and in accordance with the decision in Brandi v Mingot.[17]
[17] (1976) 12 ALR 551; (1976) 51 ALJR 207.
I reject grounds 15 and 16 of appeal.
Ground 19 of appeal
Ground 19 attacks the weight accorded to specific evidence of the past living conditions of the children on the basis that there is evidence of more recent “improved” living conditions.
However, his Honour was well aware of such distinctions. In my view, he did no more than take into account the whole of the relevant evidence in relation to the children’s living conditions, including the lack of responsiveness of the parents to interventions by the State and Non-Government Organisations since 1999 to improve those conditions.
His Honour was well justified in coming to the conclusion that evidence in relation to specific recent instances of improvement did not outweigh the pattern of poor living conditions and inadequate continuing efforts to improve them to be derived from the evidence taken as a whole. He was well justified in taking the view that although the standard was not as bad as it had once been, it was still unacceptably low. I reject ground 19 of appeal.
Bias: grounds 12 and 13 of appeal
Ground 12 makes serious allegations of the appearance of bias on the basis of alleged conduct by his Honour during the hearing. The history of this ground is that in its original and amended forms there were ten particulars of alleged conduct. In the appellants’ outline of argument, three particulars were withdrawn by the use of the words “not pressed”. As to the remaining seven particulars, only transcript references were given in the summary of argument with no justification of the particulars and no reference to any authorities.
At the hearing of the appeal, Senior Counsel for the appellants addressed ground 12 in only 15 lines in the transcript, which he introduced with the words “Look, I don’t want to make too much of this …”. In the course of the remaining 12 lines, he specifically referred to only one of the remaining seven particulars, the matter of the making of an interim order.
I consider that none of the matters referred to in this ground is of any substance at all. The appellants have not established any conduct by his Honour such as to give rise to a reasonable apprehension of bias or prejudgment. I reject ground 12 of appeal.
As to ground 13 (relating to the chronology) which was also relied upon to establish bias, I find it very difficult to understand the argument. As noted above, the chronology was simply compiled from the material already before his Honour; it was distributed by his Honour to counsel some two months before final addresses and counsel were invited to comment on it; Senior Counsel for the appellants has agreed that there is no misconstruction of the evidence contained within the chronology. If ever a case called for a working chronology this one did. If the parties were not going to supply his Honour with one, in my view it verges on the bizarre to suggest that the act of his Honour in assembling a chronology and supplying copies to counsel is redolent of bias.
I reject ground 13 in its application to bias and in full.
Making of the order under s 38(1)(d) of the Act: ground 18 of appeal
The appellants here suggest that his Honour failed to consider available alternatives to the making of the order under s 38(1)(d) of the Act.
I am sure that this very experienced Youth Court Judge did consider the various alternatives. My view is largely irrelevant. The fact of the matter is that there is simply no basis upon which the appellants could establish that his Honour did not do so and it is clear that there is no legal requirement for his Honour to specifically state that he had done so.
His Honour having correctly found that the children were “at risk”, I consider that there was ample evidence which, having regard to the provisions of the Act, not only justified, but very strongly militated in favour of, the making of the subject order rather than some alternative order.
I reject ground 18 of appeal.
Conclusion and disposition of the appeal
Having rejected all grounds of appeal, I would dismiss the appeal
STANLEY J. I have had the advantage of reading the reasons of Peek J in this matter. I agree that the appeal should be dismissed for the reasons given by his Honour. I merely add the following, having regard to the importance of some of the issues raised by the appeal.
The appellants seek to have set aside orders made by a judge of the Youth Court pursuant to s 38 of the Children’s Protection Act 1993 (SA) (“the Act”) placing children under the guardianship of the Minister until each of them attains 18 years of age.
Section 38 confers broad powers on the Court to make orders for the care and protection of children. The powers conferred include power to grant custody of a child to persons other than the child’s parents, power to place the child under the guardianship of the Minister or such other person or persons as the Court thinks appropriate in the circumstances, and power to direct a person to cease or refrain from having contact with a child or from residing in the same premises as a child or coming within a specified distance of a child’s residence.
In deciding whether grounds have been made out that warrant the exercise of such powers, namely, whether a child is at risk, the Court is governed in its proceedings by the terms of s 45. Section 45 provides:
45—Evidence etc
(1) In any proceedings under this Act—
(a)the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2) A fact to be proved in proceedings under this Act is sufficiently proved if proved on the balance of probabilities.
The appellants contend that the Court erred in admitting certain evidence notwithstanding the provisions of s 45. The appellants submitted that there is a statutory tension between subparagraphs (a) and (b) of s 45(1). They submitted that in order to act according to equity and good conscience in some matters, the Court is compelled to observe the rules of evidence.
They called in aid the dictum of Evatt J in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott:[18]
Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence”. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”.
[18] (1933) 50 CLR 228 at 256.
This argument necessitates a consideration of the statutory purpose of s 45.
In Minister for Immigration v Eshetu[19] Gleeson CJ and McHugh J said:[20]
The history of legislative provisions similar to [s 45] was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
[19] (1999) 197 CLR 611.
[20] (1999) 197 CLR 611 at 628 [49].
In Qantas Airways Ltd v Gubbins[21] Gleeson CJ and Handley JA said:[22]
The words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found…
[21] (1992) 28 NSWLR 26.
[22] (1992) 28 NSWLR 26 at 30.
As this Court noted in Griggs v Noris Group of Companies,[23] in considering a provision similar to s 45, the meaning of the expression “equity, good conscience and the substantial merits of the case” varies according to the context in which it is used. In particular, it is necessary to have regard to the nature of the decision maker and the nature of the decision to be made.[24]
[23] (2006) 94 SASR 126.
[24] (2006) 94 SASR 126 at 137 – 138 [32].
I commence with a consideration of the statutory context in which s 45 of the Act operates.
The objects of the Act are set out in s 3. It provides:
3—Objects of Act
The objects of this Act are—
(a) to ensure that all children are safe from harm; and
(b) to ensure as far as practicable that all children are cared for in a way that allows them to reach their full potential; and
(c) to promote caring attitudes and responses towards children among all sections of the community so that the need for appropriate nurture, care and protection (including protection of the child's cultural identity) is understood, risks to a child's wellbeing are quickly identified, and any necessary support, protection or care is promptly provided; and
(d) to recognise the family as the primary means of providing for the nurture, care and protection of children and to accord a high priority to supporting and assisting the family to carry out its responsibilities to children.
Section 4 of the Act provides fundamental principles which govern the operation of the Act. Relevantly, these include:
4—Fundamental principles
(1) Every child has a right to be safe from harm.
(2) Every child has a right to care in a safe and stable family environment or, if such a family environment cannot for some reason be provided, in some alternative form of care in which the child has every opportunity that can be reasonably provided to develop to his or her full potential.
(3) In the exercise of powers under this Act, the above principles and the child's wellbeing and best interests are to be the paramount considerations.
(4) In determining a child's best interests, consideration must be given to the following:
(a)the desirability of keeping the child within the child's own family and the undesirability of withdrawing the child unnecessarily from a neighbourhood or environment with which the child has an established sense of connection;
(b)the need to preserve and strengthen relationships between the child, the child's parents and grandparents and other members of the child's family (whether or not the child is to reside with those parents, grandparents or other family members);
(c)the need to encourage, preserve and enhance the child's sense of racial, ethnic, religious, spiritual and cultural identity and to respect traditions and values of the community into which the child was born;
(d)if the child is able to form and express his or her own views as to his or her best interests—those views;
(e)the undesirability of interrupting the child's education or employment unnecessarily.
…
(7) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
As the Minister said in the Second Reading Speech:[25]
Children’s rights have received increased international recognition in recent years. Australia has formalised its commitment to children by becoming a signatory to the United Nations Convention on the Rights of the Child. This convention was incorporated into the Federal Human Rights and Equal Opportunities Act in January 1993. The preamble to the convention recognises the rights of all members of the family and recognises the family as the fundamental group in society responsible for the growth and well-being of all members, particularly children. The convention recognises that families should be assisted to assume fully their responsibilities within the community. The convention states that in recognising the child in the context of the family, and in taking account of the rights and duties of the child’s parents, the rights of the child should be given primary consideration in all action taken by public or private institutions. The State role then is to assist families to care for their children and to exercise jurisdiction only when the family cannot provide the child with adequate care and protection.
[25] House of Assembly, Hansard, Thursday 5 August 1993 page 111.
Australia has been a member of the Convention since 1990. In Minister for Immigration and Ethnic Affairs v Teoh,[26] Mason CJ and Deane J said:[27]
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instruments. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with the established rules of international law: Polites v Commonwealth. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the previous paragraphs should be stated so as to require the courts to favour a construction, as far as the language of the statute permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.
(Footnotes omitted)
[26] (1995) 183 CLR 273.
[27] (1995) 183 CLR 273 at 287.
The appellants submit that in construing the Act, the Court should have regard to Australia’s international obligations, citing in particular, Article 16(3) of the Universal Declaration of Human Rights (“UDHR”) which provides as follows:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Australia is a signatory to the UDHR. The appellants submit that the UDHR has become part of international customary law.
In McGee v Gilchrist-Humphrey,[28] Perry J[29] referred to the judgment in Teoh[30] in concluding that on the present state of the law in Australia it would be inappropriate for this Court to have regard to the terms of an international treaty in construing the provisions of an Act of the South Australian Parliament.
[28] (2005) 92 SASR 100.
[29] (2005) 92 SASR 100 at 113 – 115.
[30] (1995) 183 CLR 273.
Accordingly, I propose to construe the provisions of s 45 of the Act without reference to the terms of either the UDHR or the Convention on the Rights of the Child. Nonetheless, the statutory context in which s 45 operates informs its meaning and the scope of its operation.
Section 38 confers power on the Court to break up a family. In this matter, as Mr Heywood-Smith QC, counsel for the appellants contended, that was the very result of the orders made, now the subject of this appeal.
There are few more serious exercises of State power than those conferred by s 38 of the Act. Only the deprivation of a subject’s personal liberty could be considered more serious than orders removing children from the custody of their parents. On the other hand, as s 4(3) makes clear, the child’s wellbeing and best interests, his or her right to be safe from harm and to be cared for in a safe and stable family environment or, if this cannot be provided, in some alternative form of care, are the paramount considerations in the exercise of powers under the Act.
In exercising the powers conferred by the Act, the Youth Court is a court of law. It is expected to apply the objects, principles and provisions of the Act in the determination of the applications before it. It is reasonable to suppose that it is expected to act judicially in the determination and enforcement of the rights of parties who appear before it. It is to do so however, with a recognition that by the very nature of applications for orders for the care and protection of children, the evidence available to be adduced in Court may not satisfy the established rules of evidence.
The Court can only act where it has found, as a matter of fact, that a child is at risk. Section 6(2) defines that a child is at risk as follows:
(2) For the purposes of this Act, a child is at risk if—
(aa)there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing against which he or she should have, but does not have, proper protection; or
(a)the child has been, or is being, abused or neglected; or
(b)a person with whom the child resides (whether a guardian of the child or not)—
(i)has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or
(ii)has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or
(c)the guardians of the child—
(i)are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or
(ii)are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child; or
(iii)are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or
(d)the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(e)the child is under 15 years of age and is of no fixed address.
Given this definition, it is understandable the Parliament conferred upon the Court the powers found in s 45. Evidence that a child is at risk will often occur within the family home in circumstances which would render difficult adducing such evidence in accordance with the formal rules of evidence.
In determining whether a child is at risk, the Court is free to disregard the formal rules of evidence in receiving material on which the facts are to be found, but the Court must be satisfied on proper grounds that the relevant fact has been established before it can exercise the powers conferred pursuant to s 38 of the Act. Facts can be fairly found without demanding adherence to the rules of evidence. The Court can take into account any material which, as a matter of reason, has some probative value. As Lord Denning MR said in TA Miller Ltd v Minister of Housing and Local Government:[31]
Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.
[31] [1968] 1 WLR 992 at 995.
While the appellants call in aid the judgment of Evatt J in Bott,[32] his Honour dissented in that case. The majority judgments in that case show that the Youth Court is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said of an analogous provision to s 45:[33]
[T]he provisions … make it clear that that tribunal was under no obligation to follow wholly or in any special respects the procedure of a Court of law: it was largely master of its own procedure; its duty was lawfully performed if it observed the express provisions of the Act and did not violate any substantial requirement of justice. … The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorised to act according to substantial justice and the merits of the case.
[32] (1933) 50 CLR 228.
[33] (1933) 50 CLR 228 at 249 – 250.
For my part I do not consider that s 45 of the Act would permit the receipt of evidence on a basis which would deny the interested party the right to test that evidence by cross-examination. To do so would not meet the requirement that the Court acts judicially. Nonetheless, as Brennan J said in Re Pochi v Minister for Immigration and Ethnic Affairs[34] provisions such as s 45 would permit receipt of hearsay evidence so long as the hearsay evidence admitted was logically probative of the critical factual issue. Under the Act the critical factual issue is whether the child is at risk.
[34] (1979) 26 ALR 247 at 257.
Pursuant to s 45(2) a fact to be proven in proceedings under the Act is sufficiently proved if proved on the balance of probabilities. The Court in making findings of fact can rely upon evidence which would otherwise be inadmissible in accordance with the rules of evidence so long as the evidence admitted is logically probative of a relevant fact. However, in making findings of fact, the Court, in acting according to equity, good conscience and the substantial merits of the case, should weigh such evidence as it admits, having regard to the seriousness of an allegation made which is relevant to the ultimate factual issue. So the Court will only make some findings on the balance of probabilities in accordance with the Briginshaw[35] test. This approach accords with the principle identified in Griggs that provisions such as s 45 must be construed having regard to the nature of the decision to be made.
[35] Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 – 363.
I consider that the evidence admitted by the judge of the Youth Court at the trial of this matter met the test of being legally probative. The evidence was relevant to the issue of whether the children, the subject of the application, were at risk within the meaning of the Act. That evidence was capable of being received in accordance with the terms of s 45.
No error has been demonstrated. A proper basis was made out justifying the orders made
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