M, K v Chief Executive of the Department for Child Protection

[2021] SASCA 27

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

M, K v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2021] SASCA 27

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle and the Honourable Justice Livesey)

30 April 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

The appellant had been the primary carer for her grandchildren. On 11 September 2020, following a trial in the Youth Court, a Magistrate ordered that her grandchildren be placed under the guardianship of the Chief Executive of the Department for Child Protection until they respectively attained the age of 18 years.

The appellant appealed to a single Judge of the Supreme Court on various grounds including that the Magistrate failed to apply the rules of evidence, made errors of fact, denied her procedural fairness and lacked jurisdiction to make the orders he made.

The appeal to the single Judge was dismissed and the appellant sought leave to appeal to the Court of Appeal on essentially the same grounds.

Held, refusing leave to appeal:

1.      Though the Court ultimately acts in the interests of justice, it is ordinarily necessary to demonstrate that there is good reason to doubt the correctness of the impugned decision, and that the issues sought to be raised involve matters of general principle or importance.

2. A bench of two Judges was convened pursuant to a direction made by the President under s 19C of the Supreme Court Act 1935 (SA) and r 212.4(c) of the Uniform Civil Rules 2020 (SA).

3. The grounds of appeal are not reasonably arguable and it is not in the interests of justice to permit a second appeal. As well, there is facility under s 55 of the Act for the applicant to apply to revoke the order made.

4.      This is the fourth occasion this matter has been before the Court and it is necessary, in the interests of the children and finality, to bring this application to an end.

Children and Young People (Safety) Act 2017 (SA) s 7, s 8, s 9, s 53, s 56; Supreme Court Act 1935 (SA) s 19C, s 50, referred to.
Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; Harvey v Phillips (1956) 95 CLR 235; KM v Chief Executive of the Department for Child Protection [2021] SASC 9; M, L v Minister for Education and Child Development [2018] SASCFC 131; Minister for Sustainability, Environment and Conservation v Zander [2013] SASC FC 129; South Australian Government Financing Authority v Bank of New Zealand (No 3) [2002] SASC 22; Stern v City of Adelaide [2021] SASCA 3; Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334, considered.

M, K v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2021] SASCA 27

Court of Appeal: Civil

THE COURT:

1. It is a serious thing to order that children be placed under the guardianship of the Chief Executive of the Department for Child Protection pursuant to s 53(1)(g) of the Children and Young People (Safety) Act2017 (SA) (the Act). That is particularly so where the applicant, the maternal grandmother of the children the subject of the order made in this case, is anxious to continue to provide for their welfare as she did between June 2015 and October 2018.

2. However, the paramount consideration in the administration, operation and enforcement of the Act “must always be to ensure that children and young people are protected from harm”.[1] Whilst the Act acknowledges that children and young people have various other needs,[2] State authorities must consider, as a “priority”, “early intervention in matters where children and young people may be at risk”.[3]

   [1]     Children and Young People (Safety) Act 2017 (SA), s 7.

   [2]     Children and Young People (Safety) Act 2017 (SA), s 8.

   [3]     Children and Young People (Safety) Act 2017 (SA), s 9.

3. The need for early intervention is reinforced by the requirement under the Act and the Youth Court (Care and Protection) Rules 2018 (SA) that applications for orders under s 53 must be dealt with expeditiously, without adjournments and with judgment to be delivered as soon as practicable.[4]

   [4]     Children and Young People (Safety) Act 2017 (SA), s 56; Youth Court (Care and Protection) Rules 2018 (SA), s 5.

4. Notwithstanding these requirements, the applicant in this case was afforded numerous opportunities to participate in a hearing before the Youth Court. Despite those opportunities, there were adjournments and it became necessary for the Magistrate to proceed to judgment in the absence of evidence from the applicant. The Magistrate made orders in favour of the Chief Executive under s 53 of the Act.

5. The applicant appealed pursuant to s 22 of the Youth Court Act 1993 (SA). That appeal was by way of re-hearing.[5] After an appeal in which the applicant was again given every opportunity to participate, a Judge of this Court found that the applicant had failed to demonstrate any error in the approach taken by the Magistrate.[6]

   [5]     See M, L v Minister for Education and Child Development [2018] SASCFC 131, [24]-[25] (Kourakis CJ, Stanley and Lovell JJ).

   [6]     KM v Chief Executive of the Department for Child Protection [2021] SASC 9 (Lovell J).

6. Undeterred, the applicant has sought permission to appeal pursuant to s 50 of the Supreme Court Act 1935 (SA) and r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA). The requirement to obtain permission or leave must reflect that this is a second appeal. 

7. When determining an application for leave to appeal in these circumstances, though the Court ultimately acts in the interests of justice, it is ordinarily necessary to demonstrate that there is good reason to doubt the correctness of the impugned decision, and that the issues sought to be raised involve matters of general principle or importance.[7] That approach continues to apply to questions of permission or leave to appeal in the Court of Appeal of South Australia.

   [7]     Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334, [5] (Doyle CJ, with whom Williams and Wicks JJ agreed); Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61, [11] (Doyle CJ, Nyland and Gray JJ); Bamford v Pozenel [2001] SASC 414, [26]-[30] (Wicks J); South Australian Government Financing Authority v Bank of New Zealand (No 3) [2002] SASC 22, [5] (Debelle J): “a departure from settled principle”; Rana v Gregurev [2011] SASCFC 157, [7]; Ireland v Wightman [2013] SASCFC 116, [7]-[8] (Gray, Anderson and Stanley JJ); Minister for Sustainability, Environment and Conservation v Zander [2013] SASC FC 129, [7] (Gray, Anderson and Blue JJ); Stern v City of Adelaide [2021] SASCA 3, [4] (Kelly P, Doyle and Livesey JJA): “the grounds of appeal are reasonably arguable, and that it is in the interests of justice to permit a second appeal”.

8. We sit today as a bench of two Judges pursuant to a direction made by the President under s 19C of the Supreme Court Act 1935 (SA) and r 212.4(c) of the Uniform Civil Rules 2020 (SA).

9. It is not necessary to review each of the proposed grounds of appeal because, in essence, despite their repetitive and discursive nature, they repeat the complaints made before the single Judge. Briefly:

   1.Whilst the applicant complains about the orders made with respect to child A, she is confronted by the problem that her counsel before the Magistrate conceded that she was not in loco parentis of A.[8] Subject to demonstrating any substantial miscarriage of justice, which is not apparent on the material made available to this Court, the applicant is bound by that concession.[9]

   2.Insofar as it is complained that the Magistrate failed to apply the rules of evidence, failed to apply the appropriate rules and procedures, or made various other errors and denied the applicant procedural fairness, the applicant has failed to demonstrate any error in the treatment of these issues by the single Judge. To be clear, the applicant has not identified any error in the approach taken by the single Judge when finding that there was no error of approach by the Magistrate.

   3.The applicant asserts that the Youth Court lacked jurisdiction and that only the Family Court of Australia had jurisdiction. However, she continues to overlook the terms of s 69ZK(2) of the Family Law Act 1975 (Cth): the Act is clearly a “child welfare law” within the meaning of the Family Law Act 1975 and reg 12B(1)(e) of the Family Law Regulations 1984 (Cth).

   [8]     Children and Young People (Safety) Act 2017 (SA), ss 51 and 16 (“parent”).

   [9]     Harvey v Phillips (1956) 95 CLR 235.

10. Sadly, in this case neither of the biological parents opposed the Chief Executive’s application, and the Magistrate accepted evidence to the effect that developmental delays and emotional and behavioural problems detected in the children were caused, to an extent, by the applicant’s inability to care properly for them. 

11. Some adjournments of the trial before the Magistrate were necessitated by the applicant’s ill-health.  There was evidence, which the Magistrate accepted, that the applicant had relied on methylamphetamine during times of stress.  Some testing suggested daily use, despite the applicant’s denials. There was also evidence, which the Magistrate accepted, of inappropriate behaviour by the applicant toward the children.

12. Notwithstanding the applicant’s complaint that the legal process has operated in a generally “unfair” manner, and notwithstanding her denials regarding evidence which was accepted by the Magistrate, it is not appropriate to grant leave to appeal. The grounds of appeal are not reasonably arguable and it is not in the interests of justice to permit a second appeal. As well, there is facility under s 55 of the Act for the applicant to apply to revoke the order made. That is a matter the applicant can consider when she regains her health.

13. This is the fourth occasion this matter has been before the Court,[10] and it is necessary, in the interests of the children and finality, to bring this application to an end.

    [10]   This matter has been called over on 19 March, 1 April, 16 April and today, 30 April 2021. On each occasion, as before Lovell J, the applicant did not physically attend.  On each prior occasion, the applicant sought an adjournment so as to secure legal representation.  That has been a familiar problem for the applicant.  It featured as an issue in some of the Youth Court adjournments. Today she again appeared by telephone.

14. Accordingly, the order of the Court is that leave to appeal is refused.