M, L v Minister for Education and Child Development - [2018] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
M, L v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT
[2018] SASCFC 131
Judgment of The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell
6 December 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - GENERALLY
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 - EVIDENCE AND PROOF
Appeal against a decision of a Single Judge of this Court in allowing an appeal against a decision of a Magistrate of the Youth Court, dismissing the Minister’s application that C, a child of about three years of age, be placed under the guardianship of the Minister until she attains 18 years of age.
The appellant appeals on two grounds. First, that the Judge erred in making the order of permanent guardianship instead of remitting the matter to the Youth Court for rehearing. Second, the appellant challenges the finding made by the Judge that the appellant demonstrated an inability to care for both C and A when the evidence did not support such a finding and the appellant was not cross-examined on that point.
Held, per Curiam, dismissing the appeal:
1. If an application to remit C’s matter to the Youth Court had been supported by sufficient evidence arising out of the appellant’s care of C in the intervening period, to discharge an evidentiary foundation that he had the capacity to properly care for her, then there would have been strong reasons to remit the matter (at [133]).
2. The evidence outlined by F on the appeal falls short of establishing a reasonable case for reversing the Judge’s order because of the absence of any concluded psychiatric or psychological opinion (at [138]).
Per Curiam:
1. Whether or not the Youth Court would entertain an application to vary or revoke an order would be a matter for it to determine.
Children's Protection Act 1993 (SA) s 6, s 16, s 38, s 39, s 40; Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) s 34; Youth Court Act 1993 (SA) s 22; Children and Young People (Safety) Act 2017 (SA) s 7, s 8, s 10, s 11, s 53, s 55; Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2016 (SA) s 26A, referred to.
CDJ v VAJ (No 2) (1998) 197 CLR 172; Minister for Education and Child Development v M, L & Ors [2018] SASC 32, applied.
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; H v W (1995) 126 FLR 159, discussed.
Fox v Percy (2003) 214 CLR 118; H, A v Minister for Families and Communities [2005] SASC 339; CSR Ltd v Della Maddalena (2006) 80 ALJR 458, considered.

M, L v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT
[2018] SASCFC 131
Full Court: Kourakis CJ, Stanley and Lovell JJ

THE COURT: This is an appeal against a decision of a Judge of this Court, allowing the appeal against a decision of a Magistrate of the Youth Court, dismissing the application of the Minister for Education and Child Development (the Minister) that C, a child of about three years of age, be placed under the guardianship of the Minister until she attains 18 years of age. This appeal is brought by F, C’s natural father.
In December 2017, immediately after the Magistrate’s decision, C was taken from the care of her foster parents, Mr and Mrs FP, and went to reside with F. F had the care of C’s natural brother, A, who is five years older than C.
On the Minister’s appeal to the single Judge of this Court, both the father and the child representative supported the Magistrate’s orders. The Judge found that the Magistrate did not give adequate reasons for her findings and, to the extent that reasons were given, they did not justify the refusal of the Minister’s application. On 19 March 2018, the Judge set aside the Magistrate’s order dismissing the application and made a permanent guardianship order over C, to remain in place until she attains 18 years of age. The Judge declined to stay the permanent guardianship order and C was returned to the care of Mr and Mrs FP.
F appeals against the Judge’s decision to make a permanent guardianship order, challenging both the findings of error and the failure to remit the matter to the Youth Court. On 27 June 2018, the Full Court granted F permission to appeal on the following two grounds alone:
·Ground 8, which complains that the Judge erred in making the order of permanent guardianship instead of remitting the matter to the Youth Court for a rehearing; and
·Ground 10, which challenges the finding that the appellant had demonstrated an inability to handle both C and A when the evidence did not support such a finding, as the appellant had not been cross-examined on this issue at trial and where the test for making a guardianship order requires a risk of serious harm to the children subject to the order.
In accordance with the terms on which permission was granted, ground 10 was argued on the basis that it encompassed the broader question as to whether the Judge was right to make the final determination, on appeal, as to where the best interests of the child lay, instead of remitting the matter to the Youth Court. The appellant contends that a permanent guardianship order should not have been made without re-evaluating C’s best interests with reference to her recent stay with F.
On appeal to the Full Court, the appellant further contends that the matter should be remitted to the Youth Court for the purpose of receiving evidence about F’s care of C during the time she resided with him and, on that basis, determining whether a permanent guardianship order is required. Unfortunately, as shall shortly be seen, F has yet to obtain any expert opinion evidence assessing C’s residency with him or supporting the placement of C with him.
For the reasons that follow, we would dismiss the appeal. The limited prospects F may have of obtaining a favourable order do not justify protracting the damage and uncertainty caused by C’s care arrangements whilst F attempts to procure favourable expert evidence.
Background
In August 2014 C’s older brother, A, who was born in 2010, was removed from his parents’ care because they were taking illicit drugs.[1] C was born on 5 April 2015.
[1] Pursuant to s 16 of the Children’s Protection Act 1993 (SA).
On 15 April 2015, 10 days after giving birth to C, C’s mother (M), signed a voluntary custody agreement placing C into an alternative care placement while an Investigation and Assessment Order was sought. From the time of her placement at 10 days old, save for the short time between the Magistrate’s order and its reversal by the Judge, C has been in the continuous foster care of Mr and Mrs FP, who also care for C’s half-sibling, S. Mr and Mrs FP’s two biological children also reside with them. S is the child of M but is not biologically related to F.
On 6 May 2015, an Investigation and Assessment Order was granted. On 10 June 2015, the Youth Court made an order that C be placed under the guardianship of the Minister for a period of 12 months. M was allowed some access to C during that period. On 7 July 2015, a 12-month Care and Protection Order was granted in favour of the Minister. In October 2015 A was returned to F’s care, where he has resided since. F’s mother assists him to care for A.
We note that references to ‘Families SA’ is to be understood as a reference to the Department for Child Protection.[2]
[2] Pursuant to s 34 of the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA).
It was not until 5 November 2015 that the appellant was confirmed to be C’s father. This is because Families SA delayed arranging DNA paternity testing. C first met F during a supervised access visit in January 2016 when she was nine months old. Access visits, supervised by social workers from Families SA, continued until mid-May 2017. The hour-long visits occurred twice fortnightly. By the time the arrangement concluded, twelve such visitations had occurred. A accompanied F on six of those occasions. On 15 May 2017, Families SA suspended access visits pending further assessment.
On 2 September 2016, a second 12-month guardianship order was made in favour of the Minister. At that time Families SA was working towards placing C in F’s care. Families SA referred C to a consultant social worker, Ms Nicolaou, who was employed by a private organisation, ‘Connecting Families’, for the purpose of providing expert and independent family and reunification services, including a report on the most appropriate placement of C.
After receiving that report Families SA reversed its position and decided that C should be placed in the long-term care of Mr and Mrs FP. On 22 December 2016, the Minister sought an order that C be placed under the guardianship of the Minster until she attains 18 years of age.[3] The grounds of the application were:
1.There is a significant risk that the child will suffer serious harm to her physical, psychological or emotional wellbeing against which she should have, but does not have, proper protection.
2.The guardians of the child are unable to care for and protect the child, or unable to exercise adequate supervision and control over the child.
[3] Pursuant to s 38(1)(d) of the Children’s Protection Act 1993 (SA).
The Minister’s case was that C would suffer serious harm to her psychological and emotional wellbeing if removed from Mr and Mrs FP’s care. This was so because she had been in Mr and Mrs FP’s care since she was 10 days old and had developed an attachment to them, in their family unit, above all other persons. The Minister contended that F did not have the emotional and practical parenting skills and behaviours to protect C from the serious psychological effects of separation from her foster parents.
The Minister’s application was listed for trial on 15 March 2017 but was then adjourned until 14 August 2017. A report was requested by all parties from a senior clinical psychologist, Ms Susan McNichol, a supervisor in the Families SA Psychiatric Services team. She conducted therapeutic access between C and F and a report based on her observations was to be obtained.
The delay in requesting that report is very unsatisfactory. Families SA, as the specialist agency of this State charged with the protection of children in need of care, should have been well aware that the growing attachment, over time, of C to Mr and Mrs FP would greatly complicate the evaluation of C’s best interests, and make it more difficult for F to show that he could provide the supportive environment which would allow C to form a parental attachment to him. Indeed that was the very ground on which the Minister’s application was based. Families SA should have obtained comprehensive expert assessments earlier and have been ready to proceed without delay on the date fixed for hearing.
The Minister’s application was ultimately dismissed by the Magistrate after a trial which proceeded over 16 days between August and December 2017.
Statutory criteria
The applicable legislation at the time of the Magistrate’s decision was the Children’s Protection Act 1993 (SA) (‘the CP Act’). Section 6 of the CP Act provides that the term ‘Court’ means the Youth Court of South Australia. Section 6(2) of the CP Act provided:
(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
…
(Emphasis added)
Section 38 of the CP Act relevantly provides:
38—Court's power to make orders
(a1)The Court may, on an application under this Division, make an order under this section if the Court is satisfied—
(a)     that the grounds of the application have been made out; and
(b)     that an order under this section should be made in respect of the child.
(1)In an order under this section, the Court may exercise 1 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;
…
(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;
…
(f)the Court may make consequential or ancillary orders—
(i)providing for access to the child; or
(ii)    providing for the way in which a person who has custody or              guardianship of the child under an order of the Court is to deal          with matters relating to the care, protection, health, welfare or                education of the child; or
(iii)requiring a parent, guardian or other person who has the care of a child to undertake specified courses of instruction, or programmed activities, in order to increase his or her capacity to care for and protect the child; or
(iv)dealing with any other matter.
(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 subsection (1)(d)) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
…
The following elements of s 38 should be noted:
·A parent or guardian can be required to undertake courses and treatments to enhance his or her capacity to care for a child.
·The Court may give directions to persons to better protect a child.
·The Court may make a range of orders to secure the protection and well-being of children, the most interventionist of which is to place the child in the guardianship of the Minister until the child attains 18 years of age.
·A child will only be placed with someone other than his or her parent if the Court finds that there is no parent able, willing and available to care for the child and that such a placement is the ‘best available solution for the child.’
·The Court must place importance on settled and stable living arrangements and, generally, a long-term guardianship order is to be preferred to a series of interim orders.
Section 40 provides for variation or revocation of the orders as follows:
40—Variation or revocation of orders
An order made by the Court under this Division—
(a) may be varied or revoked at any time on application by a party to the proceedings; and
(b)lapses when the child attains 18 years of age.
Section 40 provides a broad discretion. Having regard to the terms of s 38 of the CP Act, on the making of a long-term guardianship order, it can be expected that the Youth Court would exercise its discretion to expeditiously dismiss an application, even without a comprehensive investigation and hearing unless there is a significant change in circumstances.
Section 22 of the Youth Court Act 1993 (SA) (the Youth Court Act) relevantly provides:
22—Appeals
(1)A party to proceedings in the Court may, in accordance with the rules of the appellate court, appeal against any judgment given in the proceedings (including an acquittal on a charge of a summary or indictable offence) but an appeal does not lie against a judgment in committal proceedings.
…
(3)On the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the matter for hearing or further hearing;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
The appeal provided for by s 22 of the Youth Court Act is by way of a rehearing. Accordingly, this Court has the power to receive further evidence. That power is not confined by the restrictive requirement for the admission of fresh evidence on an application for a new trial.[4] In the exercise of that discretion, the critical factor is the subject matter of the proceedings.[5] For that reason, the need for finality in litigation does not necessarily apply especially in cases that concern the welfare of children.[6] The discretion is ‘more ample’.[7] Importantly, further evidence can also be received to buttress findings already made.[8] McHugh, Gummow and Callinan JJ explained, with respect to parenting orders made in the Family Court:[9]
The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ‘custodian’ of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[4]    CDJ v VAJ (No 2) (1998) 197 CLR 172.
[5]    CDJ v VAJ (No 2) (1998) 197 CLR 172 at [104].
[6]    CDJ v VAJ (No 2) (1998) 197 CLR 172 at [104].
[7]    CDJ v VAJ (No 2) (1998) 197 CLR 172 at [108].
[8]    CDJ v VAJ (No 2) (1998) 197 CLR 172 at [109].
[9]    CDJ v VAJ (No 2) (1998) 197 CLR 172 at [117]-[118].

On an appeal by way of rehearing, the law to be applied is the law as at the time of the appeal unless a transitional provision otherwise provides. On 26 February 2018, after the decision of the Magistrate but before the Judge’s decision, Parts 1-3 of Chapter 2 of the Children and Young People (Safety) Act 2017 (SA) (the CYP Safety Act), and in particular its placement and intervention principles, came into effect. On the same date the objects and principles of the CP Act were repealed. The Children and Young People (Safety) Regulations 2017 (SA) (CPY Safety Regulations) extended the placement and intervention principles of the CPY Safety Act to proceeding under the CP Act.[10] The balance of the CYP Safety Act came into effect on 22 October 2018, and on the same date the remainder of the CP Act was repealed. Section 26A of the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2016 (SA) (The Transition Arrangements Act) provides that:
[10] Reg 43.
26A—Certain proceedings continued as proceedings under Children and Young People (Safety) Act 2017
Despite a provision of any other Act or law, proceedings under the repealed Act commenced, but not finally determined, in the Youth Court of South Australia before 22 October 2018 will continue and will, for all purposes, be taken to be proceedings commenced under Chapter 6 of the Children and Young People (Safety) Act 2017.
We proceed on the basis that the intervention and placement principles of the CYP Safety Act applied to the hearing before the Judge because the CPY Safety Regulations evince an intention that the principles of intervention and placement of the CPY Safety Act are to apply to all extant proceedings under the CPY Safety Act with immediate effect. This Court must consider whether the Judge erred in the exercise of her Honour’s discretion to remit the matter in accordance with the principles of the CPY Safety Act. The relevant provisions are:
7—Safety of children and young people paramount
The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.
8—Other needs of children and young people
(1)In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:
(a)     the need to be heard and have their views considered;
(b)     the need for love and attachment;
(c)     the need for self-esteem;
(d)     the need to achieve their full potential.
(2)To avoid doubt, the requirement under this section applies to the Court.
(3)Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.
…
10—Principles of intervention
(1)The principles of intervention are as follows:
(a)     decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability);
(b)     if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances;
(c)     account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed;
(d)     in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate.
(2)Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention.
(3)However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7.
(4)To avoid doubt, the requirement under this section applies to the Court.
11—Placement principles
(1)The placement principles are as follows:
(a)     all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment;
(b)     the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship;
(c)     approved carers are entitled to be, and should be, involved in decision-making relating to children and young people in their care.
(2)Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles.
(3)However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7.
(4)To avoid doubt, the requirement under this section applies to the Court.
The principles of intervention and placement of the CPY Safety Act do not provide that a precondition to the making of a permanent guardianship order, a finding that a biological parent is incapable or unwilling to care for the child. They provide instead that a court must have regard to the desirability of keeping children and their parents together. However, at the time of the Judge’s decision, s 38(2) of the CP Act remained in force. The enactment of the intervention and placement principles therefore did not materially change the law applicable on the appeal to the Judge.
If the order of the Judge were set aside and the matter remitted to the Youth Court, all future proceedings would be governed by s 53 and s 55 of the CYP Safety Act because the proceedings in the Youth Court would not have been determined and s 26A of the Transition Arrangement Act would apply. Those sections would of course also govern any future proceeding if the order of the Judge were confirmed. Sections 53 and 55 of the CPY Safety Act provides:
53—Orders that may be made by Court
(1) If, on an application under this Act, the Court is satisfied that it is appropriate to do so, the Court may make 1 or more of the following orders in relation to a child or young person:
(a)     an order requiring—
(i) the child or young person; or
(ii) a parent or guardian of the child or young person; or
(iii) any other person who has the care of the child or young person, to enter into a written undertaking (for a specified period not exceeding 12 months) to do a specified thing, or to refrain from doing a specified thing, and, if the Court thinks fit, requiring the child or young person to be under the supervision of the Chief Executive or some other specified person or body during the period of the undertaking;
(b)     an order authorising or requiring examination and assessment of the child or young person;
…
(e)     an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive;
(f)      an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of a specified person or persons (not exceeding 2);
(g)     an order placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age;
(h)     an order placing the child or young person under the guardianship of a specified person or persons (not exceeding 2) until they attain 18 years of age;
(i)      an order granting custody of the child or young person, for a specified period not exceeding 12 months, to—
(i) a parent or guardian of the child or young person; or
(ii) a member of the child or young person's family; or
(iii) any other person that the Court thinks appropriate in the circumstances of the case;
(j)      an order granting custody of the child or young person to the Chief Executive;
…
(m) such consequential or ancillary orders as the Court thinks fit, including (without limiting the generality of this paragraph) an order—
(i) requiring a person who has guardianship or custody of the child or young person pursuant to an order of the Court to care for the child or young person in a specified way; or
(ii) requiring a parent, guardian or other person who has the care of a child or young person to undertake specified courses of instruction, or programmed activities, in order to increase their capacity to care for the child or young person.
(1a) Without limiting the orders that can be made under subsection (1), the Court may make an order placing a child or young person under the guardianship of a specified parent of the child or young person.
Note—
Such an order would confer guardianship on the specified parent to the exclusion of the rights of any other parent of the child or young person—see section 68.
…
(2) The Court may make such interim orders in relation to an application under this Act as the Court thinks fit.
(3) Subject to this section, an order under this section has effect for the period specified in the order.
(4) An order under this section ceases to have effect when the child or young person to whom the order relates turns 18 years of age.
…
55—Variation, revocation or discharge of orders
(1) The Court may, on an application by a party to the proceedings, vary or revoke an order under section 53.
(2) The Court may, on an application by the Chief Executive, discharge an order under section 53.
The Minister’s case at trial
The Minister relied on the following reports which were received into evidence:
·Report of Mr Ruben Holas, Case Worker, and Ms Kylie Adams, Manager, Family Preservation and Reunification Service, Anglicare, dated 26 May 2016;
·Social Work Report and Addendum Report of Ms Rachel Vogelsang, Social Worker, Department for Child Protection, dated 11 November 2016 and 2 March 2017 respectively;
·Second addendum report of Ms Sarah Watherston, Psychologist, Psychological Services, Department for Child Protection, dated 27 June 2016;
·Reunification Assessment Report by Ms Anne Nicolaou, consultant social worker, Connecting Families, dated 25 October 2016;
·Report of Ms Susan McNichol, Clinical Psychologist, Adapt Psychology, dated 30 June 2017; and
·Report of Ms Ella Connor, Psychologist with Families SA, dated 13 July 2017.
The Minister called Ms Ella Connor, a clinical psychologist, and Ms Rachel Vogelsang, a social worker, both of whom were employed by Families SA, to give evidence.
Mr and Mrs FP were not called to give evidence even though their observations of C were heavily relied on by the experts on which the Minister relied. We, like the Judge, find it difficult to understand why they were not called.
In her report of 11 November 2016, Ms Vogelsang records that access between C and her father commenced on 20 January 2016 in the Families SA office at Port Lincoln. Ms Vogelsang’s opinion was that F was unable to meet C’s needs as well as the special needs of A. Her report relevantly states:
Whilst the father has engaged with supports to enable reunification with [A] to progress, the father has failed to demonstrate a meaningful capacity to integrate the strategies offered by these parenting supports into his parenting of [C] and [A]. During access visits, the father struggles to meet the competing demands of the children which results in him reverting to punitive and threatening behaviour management strategies, which are not reflective of the children’s emotional needs.
…
The Department acknowledges the changes the father has made with regard to achieving ‘good enough’ parenting to enable to [A] to be reunified to his care, however concerns prevail regarding the father’s reflective capacity regarding [A]’s experiences of trauma. It is of serious concern that this lack of reflective capacity and empathy will extend to the father’s parenting of [C] if she were to be reunified with him. If [C] and [A] were both in the father’s care they would each have exceptional needs as a result of their trauma experiences and attachment concerns. A lack of emotional attunement by the father, as has been evidenced in both the Connecting Families and psychological assessment by Ms Watherston, has serious negative implications for the trauma recovery of the children.
…
Whilst it is acknowledged that children deserve the opportunity for reunification to be explored with their natural family, this must occur within developmental timeframes commensurate to their needs. Unfortunately for the father, and notwithstanding the severity of the parenting concerns pertaining to him, [C] has already developed a secure attachment with her caregivers. Her carers are committed to [C]’s long-term care and continuing the placement would prevent psychological damage as a result of [C]’s primary attachment relationship being severed. Maintaining this placement will provide [C] the stability and certainty she requires to reach her full potential. Maintaining this placement will also support [C]’s positive connection with her sister [L] who she has lived with in the same placement since [C] was 10 days old.
Ms Vogelsang proposed the following case plan:
·C to be placed under the Guardianship of the Minister until she attains 18 years of age.
·C to remain in her current placement with her sister, [S], and for [Families SA] to support the long-term viability of this placement.
·The mother and father (separately) to have regular access with C that supports best connection. All access arrangements will be subject to review to ensure this is meeting C’s needs and is in her best interests. Access for each parent is proposed to occur at a frequency of once per fortnight for 2 hours.
·The mother and the father to be provided with information regarding the ongoing care and wellbeing of C, such as medical, educational and emotional/behavioural updated [sic] where appropriate.
·The mother and the father to be invited to provide their opinions/views about all areas of C’s domains as part of [Families SA’s] yearly reviews.
In her addendum report dated 2 March 2017, Ms Vogelsang informed the Court that access to C had previously been arranged for C’s natural parents on alternative weeks however, due to an increase in C’s regressive behaviour, access was rearranged to occur in the same week to provide C with a longer period of time to return to her regular routine. Ms Vogelsang stated:
The father has continued to attend access once a fortnight for 2 hours at a time. [C]’s brother [A] attends with the father once a month. The father has been observed in the last two accesses to become more involved with [C] by talking to her and leading some of the play. [C] will respond with smiles and vocalising her delight, however [C] makes minimal eye contact with the father, either choosing to look at him briefly and then look away or she keeps her eyes averted, rather than sustaining eye contact. [C] has been observed to call the father ‘daddy’ during the course of the access.
Ms Vogelsang’s criticism of F for not contacting her until a week after he had undertaken a DNA paternity test was challenged in cross-examination. It emerged that between April and October 2015 F had repeatedly asked for, or at least discussed with Ms Vogelsang, a DNA paternity test. Of course, without confirmation of his paternity he had no, or no strong standing, to ask that C be placed with him. Ms Vogelsang accepted that she knew from the time of C’s birth that there was a substantial possibility that F was her father and that a DNA test could be completed within 10 days of being requested. She agreed that F responded quickly after forms relating to paternity testing were left with him in October 2015. A report provided to the Children’s Court in June 2015 by Ms Vogelsang’s supervisor, a draft of which was reviewed by her, assured the Court that Ms Vogelsang had the arrangements for paternity testing in hand. Ms Vogelsang’s explanation for the delay between April and October 2015 was ‘case drift’, whatever that may mean, but she accepted that the delay in arranging paternity testing until seven months after C’s birth was ‘outrageous’. We agree.
Ms Vogelsang confirmed that F was in Port Lincoln at the time of C’s birth. He left several days after C’s birth, apparently on Ms Vogelsang’s advice that he prioritise the care of his son A, who was residing in Adelaide at the time, because there was a ‘question’ as to his paternity of C.
Counsel for the Minister conceded in her opening that there was an unacceptable delay on the part of Families SA in meeting the best interests of C, by establishing access between C and F, after C’s paternity was confirmed.[11]
[11] Trial transcript T69. General references to case drift, see trial transcript 14, 26, 68, 211, 530.
Ms Watherston is a psychologist employed by Families SA. Following a referral by Ms Vogelsang, Ms Watherston prepared three reports on F’s parenting capacity and to assess C’s attachment to Mr and Mrs FP.
In her first report dated 27 June 2016, Ms Watherston concluded that C, who was then one year and two months old, had become so attached to Mr and Mrs FP that ‘severing this bond (such as if C was to be reunified with F) is likely to be a traumatic experience for her.’ Nonetheless she recommended that Families SA facilitate more access between C and F to build a sufficient attachment for C to be placed in F’s care. Ms Watherston recommended that the Minister seek a second 12-month Care and Protection Order for that purpose and that Families SA provide additional support to F. Ms Watherston concluded:
The writer notes that attachment is universally seen as critical to an infant’s sense of security, well-being and healthy development. In the current assessment, [F] demonstrated the ability to remain attuned and responsive to both [C] and [A]’s individual needs. Whilst the writer acknowledges that separating from [Mr and Mrs FP]’s care will be very disruptive for [C], it is conceivable that [C] will be able to develop an attachment bond with [F] and recover from the trauma caused by severing her attachment relationship with [Mr and Mrs FP]. The writer firmly believes that growing up within a supportive and nurturing care environment has not only been critical for [C]’s healthy development and stability, but has laid the foundation for [C]’s positive template of attachment relationships and the emerging bond developing with [F]. Therefore, the writer recommends that Families SA continue to pursue reunification of [C] with [F] within a timeframe commensurate with [C]’s needs.
(Emphasis added)
In an addendum psychological report dated 1 September 2016, Ms Watherston confirmed that recommendation. Ms Watherston advised immediate reunification was not in C’s best interests but proposed a four-stage process of increasing access in the period of the second 12‑month order culminating with the placement of C into F’s full-time care.
Ms Watherston’s second addendum psychological report dated 9 November 2016, was provided in response to Ms Nicolaou’s report. As will be seen, Ms Nicolaou’s report recommended against placing C in the care of F. Ms Watherston’s addendum report repeated Ms Nicolaou’s concerns that F lacked the capacity to manage C and A together. Ms Watherston also recounted the concerns of Mr and Mrs FP about C’s behaviours after access visits with F. In her conclusion Ms Watherston reversed her earlier opinion supporting that C and her father be united:
In summary, the writer does not consider that [F] is equipped to manage the competing complex needs of both [A] and [C] or that he can improve his parenting sufficiently in the foreseeable future. With the assistance of the additional information gathered subsequent to the writer’s assessment and with further reflection regarding [C]’s needs, it is the writer’s opinion that there are now strong indicators that reunification between [C] and [F] is no longer viable, nor in the best interests of either [C] or [A]. However, the writer is supportive of [C] being encouraged to continue to establish a relationship with [F] and [A] at her own pace, but it is noted that [C]’s attachment relationships with her carers [Mr and Mrs FP] must be given primacy over all other relationships.

By the time Ms Watherston’s second report was received, C was one year and six months old.
Ms Nicolaou is a consultant social worker. On 2 September 2016 Ms Vogelsang sought an assessment of C’s case from Ms Nicolaou. Ms Nicolaou summarised generally accepted parent-child reunification considerations as follows:
Consideration of whether a child removed from the care of parents for safety concerns can be safely and sustainably returned to the care of either or both parents is a complex process requiring careful assessment of a number of factors. Three core ecological domains must be considered: 1. The parent’s capacity to meet the needs of this child to a ‘good enough level’, 2. The range of the child’s core and particular needs that must be met, and 3. The wider family and environmental context that supports the parent and child (Hackett, 2013: 45). Donald and Jureidini (2004) caution against relying too much on environmental supports, or ‘scaffolding’, warning that it is the quality of the parent-child relationship that is most crucial to the child’s long term safety and development. Attachment theory and research strongly informs the reunification assessment and decision making process. Children have a critical need for stable, predictable, attuned and nurturing caregiver to whom they can form an attachment relationship. This informs the timeliness of reunification efforts: babies have only a small window of opportunity to be successfully reunified before developmental harm is caused, as they risk the disruption of attachment relationships with their caregivers (Gauthier et at, 2004: Meenen & O’Keefe, 2005; McIntosh, 2006).
For babies removed at birth there are particular considerations. Too often the process is considered one of ‘reunification’ rather than the more apt ‘unification’. With the attendant additional challenges. Where a baby has effectively been cared for since birth by foster or kinship carers, both the child and their carers form a close relationship akin to that of the usual parent-infant connection – for the child, their carer is their psychological parent and the blood tie has no meaning for them; for the carer, they have a strong and protective bond to the child.
(Emphasis added)
Ms Nicolaou’s criticisms of F’s parenting capacity were expressed as follows:
[F] has been observed to display a consistent thought and behaviour pattern of externalising responsibility. Over the course of discussions he did not acknowledge any responsibility for past concerns, nor identify what had changed since then. All past and current problems and difficulties were blamed on others. The taking of responsibility is considered a core and essential feature of protective parenting. The absence of this by [F] was of concern to the consultant as it raised doubt as to whether the neglectful and punitive parenting practices of the past will re-emerge under stress.
Two of the ‘concerns’ earlier identified in Ms Nicolaou’s report were that Families SA claimed that F showed no interest in confirming paternity, whereas F claimed that Families SA did not respond to his requests in undertaking DNA testing, and that he stayed in Port Lincoln when C was born instead of returning to Adelaide to care for A. As to the former matter, Ms Vogelsang stated that she was ‘upfront’ with Ms Nicolaou in acknowledging that the delay in obtaining the DNA test was her fault. If Ms Vogelsang’s evidence is truthful, Ms Nicolaou misstates what she was told. As to the latter matter, Ms Nicolaou does not appear to have allowed for the natural human tendency for a father to want to be with his partner at the time she is pregnant with their child. In that time F renovated M’s home and returned to Adelaide, where A was being cared for by his parents, a week after C’s birth.
When interviewed by Ms Nicolaou, F also denied responsibility for the inadequate care of C before she was removed from her mother and for the poor parenting of A. Ms Nicolaou placed substantial weight on F’s failure to take responsibility. However, with respect to some matters his explanations may have been true and valid. Ms Nicolaou did not have any evidential basis to believe otherwise. With respect to others, of which there was evidence, Ms Nicolaou made no allowance for the difficult position in which F found himself. He was on a steep learning curve as a parent, having only recently commenced caring for A, and was anxious to be united with his daughter. Although F found managing A’s behaviours challenging, he was in no different a position to many parents coping with children with difficult behaviours. As will be seen, A was later diagnosed as suffering from attention deficit hyperactivity disorder (ADHD). Ms Nicolaou accepted that F could ‘articulate and display some important aspects of attuned parenting’. Ms Nicolaou also accepted that F was well intentioned and ‘clearly feels affection and pride’ for C but concluded that he was not able to develop a positive relationship with her. Ms Nicolaou also emphasised C’s agitated behaviours on her return from access visits.
On C’s relationship with Mr and Mrs FP, Ms Nicolaou reported:
[C] has been in the continuous care of her foster parents since she was 10 days old. Her carers are known to be consistently loving, attuned and responsive to her needs, such that she is normally a happy and well-regulated child, and confident to explore. It can be assumed, as well as being evident from her behaviours, that she is securely attached to her foster parents, and in her 18 month old mind knows them as Mum and Dad. Her foster parents are concomitantly strongly bonded to her, and understandably, do not want to lose her.
There is good reasons for the practice standard of reunifying babies before the end of their first year, as the emotional trauma of disrupting a primary attachment relationship is considerable. Practice guidance in this area has continued to evolve, with the most recent guidance supporting timely decision making based on the primacy of children’s attachment relationships. Where children have formed their primary attachment relationship to their carers it is argued that this should not be broken in the interests of reunification to birth parents (Gauthier et al 2004; McIntosh, 2006[12]).
[12] ‘McIntosh’ is a conference paper in which it is stated: ‘this paper quietly applauds legislation that upholds the right of the child to early psychological security within an available and continuous attachment relationship.’
We interpolate here that the Gauthier article is a clinical experience study, of just three cases in the Canadian Youth Court, of children who had been removed from/unified with foster parents and biological parents. The authors described foster parents as the psychological parents, and argued that they should retain custody over the biological parents. Ms Nicolaou’s report continues:
Parents who are keen to have their child, who is now securely attached to others, returned to their care, may be very ill-equipped to deal with the high level of distress that a traumatised child would quickly display upon separation from their psychological parents. These are the often unknown outcomes of reunification processes.
Ms Nicolaou concluded that C would be ‘traumatised by the loss of her psychological parents’ and would not have the same ‘attuned parenting’ to overcome that distress that she would have in the case of Mr and Mrs FP.
Ms Nicolaou doubted the premise of Ms Watherston’s unification plan that C would develop a strong attachment to F. She explained:
In the circumstances of [C] not even meeting her father until she was 9 months old and already in active attachment with her carers, plus access only occurring only fortnightly, such an emotional connection was never likely to happen. The only way this could have happened was if [F] had remained in Port Lincoln and contact began very early and frequently.
We pause here to observe that, if Ms Nicolaou’s opinion is right, Ms Vogelsang’s delay in arranging the DNA paternity test, and in advising F to return to Adelaide to care for A, effectively removed any prospect of C being placed with F. It is difficult to overstate the enormity of the consequence of the delay in paternity testing. The recognition of the trauma suffered by children when removed from carers, with whom they have formed bonds, akin to those of parent and child, should serve to redouble the resources assigned to expeditiously provide support to those parents who may have the emotional capacity, and a reasonable prospect of developing the skills, to care for their children.
Next, Ms Nicolaou propounded a position in opposition to the unification plan which would preclude unification of many children with their parents:
Whilst the point about a child’s capacity to form another secure attachment is true, it is the extension of this argument into the child protection context that is very problematic. Where a child has a secure attachment to their caregiver and faces the loss of that caregiver due to unavoidable circumstances (such as immediate danger or unavailability of the caregiver), the child will be better placed to cope than a child with a previous insecure of [sic] disorganised attachment. Extrapolating this argument to justify deliberately breaking a child’s secure attachment relationship in order to reunify a child to family is a very different proposition. The argument behind this is that ‘the end justifies the means’, that a bit of short term trauma is not as bad as the long term loss of birth family, so it is best to do it for the long term gain. This is [F]’s logic for [C] being returned to his care. He places a very high value on [C] being raised within her birth family, and a low value on the argument that her current attachment relationships are critical to her wellbeing. This is not an ethical position that the consultant supports. The theory and research on the critical importance of attachment to a child’s wellbeing and development provides a sound base for ethical decision making on this issue. As does the core ethical principle of ‘First, do no harm’. There is nothing in the evidence base or the child protection legislation that countenances taking action that traumatises a young child when there is an option not to do so.
(Emphasis in original)
We first observe that it was not only F but also s 38 of the CP Act which placed a high value on C being raised by her birth family. The CPY Safety Act has since modified that emphasis but it remains an important consideration. Secondly, the above passage of Ms Nicolaou’s report confuses the ethics of child placement with a professional assessment of the interests (both short and long term) of children. Physicians often cause, or allow, short-term limited harm, in order to improve the prognosis, or even save the life, of a patient. In so doing they do not act unethically. On the contrary, they are taking a holistic and long‑term view of a patient’s health. So too with the protection of a child, and decisions as to whether his or her interests are best served by remaining with his or her foster or natural parents. Section 7 of the CYP Safety Act provides that ensuring that children are protected from harm is the paramount consideration in the administration of that Act. However, the harm from which children are protected is both short term and long-term harm. The immediate trauma of the child who is separated from carers, and the capacity of his or her parents to assuage that trauma, is of great importance. On the other hand, there exists an innate value in the bond between natural parents and their children as they grow older and the denial of that bond may also cause harm. The ethical obligation of the professionals advising welfare authorities and courts on this most difficult of issues is to make a dispassionate scientific, evidence-based assessment of how a child is best protected from all harm.
Ms Nicolaou concluded:
C’s best interests would clearly be met by allowing her to be raised in her foster family. Returning her to her father’s care would cause serious harm to her wellbeing and development, and possibly jeopardise her physical safety. It would also cause overall detriment to [A] and [S], traumatise C’s foster carers, and challenge [F] well beyond his parenting capacity.
Ms Nicolaou made the following three recommendations at the conclusion of her findings:
1.   Families SA to apply for an order placing [C] under the long term guardianship of the Minister.
2.   Serious consideration be given to transfer of guardianship to [C]’s foster parents in the near future, with appropriate supports, to give [C], sister [S], and their foster parents a stronger sense of security and belonging.
3.   Access orders to be based on the assessment of [C]’s needs.
Ms Ella Connor is a clinical psychologist with Families SA. She provided a report dated 13 July 2017. In that report Ms Connor outlined regressive changes in the behaviour of C following increased access visits with F and A. These changes included disrupted sleep, a reduced ability to re-settle herself to sleep, reduced or increased appetite, a growing tendency to pull out her hair, putting her fingers down her throat and crawling instead of walking. C also resumed a self-soothing behaviour of stroking her own cheek, which she had tended to do when bottle-fed and which, as a consequence, left a sore on her face.
Ms Connor observed:
The decline in [C]’s emotional and behavioural functioning following access visits was highly concerning. The fact that [C] experienced physical and emotional symptoms over several days indicates that her body remains in a state of stress for a prolonged period of time. Not only is this damaging to [C]’s overall wellbeing, but will undermine her development, mental health and overall sense of safety and security in her life. There was also evidence from the current assessment that [C]’s sense of security with [Mr and Mrs FP] was beginning to be undermined by access arrangements.
…
In determining the most appropriate family contact arrangements for children, consideration should be given to the purpose of access visits, the child’s emotional, behavioural and developmental functioning, the quality of the child’s attachment relationship with their biological parent(s), the parent(s)’ ability to attend consistently, and to identify and consistently respond to their child’s physical and emotional needs, the impact of access visits on the child’s emotional, behavioural and developmental functioning, and the child’s wishes regarding access visits.
…
It was particularly concerning to the writer that [F] continued to demonstrate a pattern of externalising responsibility, could not consider that access visits were having a detrimental impact on [C], struggled to empathise with her experiences, and significantly minimised the emotional impact on [C] of being removed from [Mr and Mrs FP].
In Ms Connor’s opinion, F was unable to provide the level of ongoing care C had come to expect from her foster parents. Ms Connor concluded that C should remain in the care of Mr and Mrs FP while enabling a ‘best connection’ relationship with her natural parents and siblings by reinstating access visits ‘in a structured and predictable manner’.
Ms Connor supported her conclusion as follows:
Having said all this, it is the writer’s opinion that the most essential consideration when making a decision about reunifying [C] with [F], is the impact of removing [C] from her primary attachment figures. It is important to highlight that the term ‘attachment’ has a specific meaning in the psychological literature and is not simply reflective of a child’s overall relationship with an adult, nor does it reflect the parents’ feelings towards their child. Of critical importance, a child forms an attachment to their caregiver through repeated moments of sensitive and attuned caregiving and it is therefore unique to a specific caregiving relationship. It cannot simply be transferred between caregivers. While a securely attached child may expect other caregivers to be responsive, permanently disrupting a secure attachment relationship will undoubtedly undermine this sense of trust and security. The nature and quality of a child’s attachment to their primary caregiver is foundational for all areas of a child’s development and future functioning. Children come to understand themselves, others and the world based on their early attachment experiences. This forms the basis for how they deal with emotions, their self-esteem, and how they engage in relationships. [C], at two years and three months of age, is unable to comprehend the concept of biological versus non-biological parents. All [C] knows is the sense of safety and belonging she derives from her relationships with her primary caregivers. Psychologically, [Mr and Mrs FP] have become her parents. Priority must be given to [C]’s need to maintain continuity in her attachment relationships. Disruption to [C’s] attachment relationships would constitute a major trauma in her life and have a negative impact on all areas of her future development.
Furthermore, while [C] is too young to offer her verbal opinion, in considering the observations of [C]’s secure and preferential attachment behaviours toward her foster parents and her familiar, but not close relationship with her father as observed by numerous professionals, the child’s ‘voice’ clearly demonstrates a strong preference to remain with her foster parents. [C] has a right to be safe from harm and to meet her full potential. Disrupting her secure attachment with her foster parents will undoubtedly cause her harm and adversely impact on her long term potential. [F] has demonstrated he does not have the capacity to help her overcome the trauma of separation. Therefore, [the] writer supports the Department’s application to place [C] under the long-term Guardianship of the Minister.
With this in mind, the purpose of [C]’s access visits with Ms Webb and [F] is to maintain a ‘best connection’ relationship. That is, to enable [C] to maintain knowledge of her family and family history, develop her sense of identity and to alleviate any fantasies or fears regarding her parents’ safety or love for her. Whilst not diminishing the importance of family relationships, the concept of a ‘best connection’ is a longer-term development task and priority must be given to [C]’s immediate need for safety and stability, to be able to progress to the next stage of her development, and to feel secure in her attachment to her foster carers. Whilst connection with biological family is important for identity development and when it is a positive experience for children has been linked with positive mental health outcomes, there are many other experiences that are also essential for [C]’s identity development. [C]’s relationship with her foster family will provide the foundations for [C’s] self-esteem and identity. [C]’s strongest sense of belonging will come from the experience of being connected and accepted as part of her foster family.
As outlined above, despite [F]’s strong commitment to maintaining a relationship with [C] he lacked insight into [C]’s emotional needs and the impact of access visits on her physical and emotional wellbeing. [F] was unable to provide the level of attuned caregiving that [C] had come to expect from her caregivers. Consequently, [C] had not developed a strong relationship with [F]. [C] had also demonstrated a consistent pattern of decline in her emotional and behavioural functioning. Therefore, in order for access to be reinstated and for [C] to benefit from relationship-building experiences with her parents, she must first and foremost feel physically and emotionally safe in access visits. It is recommenced that until [C] is older, has greater concept of time, can tolerate transitions, and has developed sufficient language in the pre-school range to understand and communicate her experiences, access visits must occur in a highly predictable and consistently supported manner.
(Emphasis in original)

In addition to her written report, Ms Connor was called by the Minister to give evidence. During her examination-in-chief, Ms Connor explained attachment theory as follows:
Attachment is based on moment to moment interactions with a particular caregiver, their primary caregiver, it differs from the really strong affectionate bond that parents have towards their children that are of course evidence at birth but they shouldn’t be confused for the same thing. Attachment is very much a word or a description of the relationship from the child’s perspective and it’s very much linked to survival, so Bowlby in his early research linked it to an evolutionary adaptation whereby connection with a primary caregiver is essential for survival.
…
And because it’s very much a relationship that is based on safety at its core, that’s why for children where attachment is disrupted particularly in early stages of development, it has such a profound impact on their wellbeing because it takes away their source of safety.
Ms Connor was asked to describe what happens to a child who does not develop a primary care attachment. Ms Connor stated that there are significant negative outcomes that can lead to the development of psychological issues, difficulties with emotional behaviour, difficulties understanding or regulating emotions, and difficulties with empathy. She added that the absence of a primary care relationship can adversely affect cognitive development.
When asked what outcomes could arise if a child’s attachment were disrupted at a critical stage, Ms Connor said:
… if we disrupted a child’s attachment at that age there would be a profound grief reaction from the child. They would be extremely distressed, would impact on their sense of trust in relationships. It would impact on their ability to engage in other aspects of their life, it would interfere with their developmental progress.
In cross-examination, when it was put to Ms Connor that C was a high needs child, Ms Connor stated:
She was a distressed baby but it wasn’t within, outside of the realms of what a parent might normally encounter with a child who’s suffering from colic, etc. There was evidence that she had some impact from her time in [M]’s care, but in terms of trauma, separation at 10 days of age is not the same as separation at nearly two and a half years of age; they’re very different things.
Ms Connor gave the following succinct explanation for her recommendation that C remain with Mr and Mrs FP:
As a nearly two-and-a-half-year-old child, all she has known has been [Mr and Mrs FP], they are her psychological parents, that is her family as she sees it from her little two‑year-old perspective, she is oblivious to all of the other business that’s been going on around her. I have to make a recommendation on the basis of what [C] needs now.
Ms Connor did not agree that C could transfer attachment from one parental figure to a ‘positive template of attachment relationships and the emerging bond developing with [F]’. Ms Connor stated:
The part I disagree with is the idea that that can be sort of transferred because a child has a healthy template with one parent that she’ll simply go on and develop that with another, it can be helpful if a child has learnt that adults are trustworthy that they can meet your needs and more broadly in terms of sense of safety with adults. However, what [Ms Watherston]’s interpretation doesn’t capture is that when that secure attachment is ruptured it’s a massive trauma and shatters the child’s perception of security in relationships.
Evidence called by C’s representative
Ms Susan McNichol is a consulting clinical psychologist. She was called to give evidence by C’s legal representative. On 28 March 2017, 12 days after the initial hearing before the Magistrate, the parties wrote to Ms McNichol requesting a ‘therapeutic access programme’ with C, her parents and A for a period of three to four months, for the purpose of improving C’s experience and relationships during access visits. If a therapeutic access programme is of greater evidential and therapeutic value than the access arrangements made by Ms Vogelsang, one should have been put in place much earlier.
Ms McNichol provided therapeutic involvement during access visits between C, F and A. Ms McNichol conducted four interviews, facilitated four access visits and conducted two sessions with F and his parents. Ms McNichol did not formally observe C with Mr and Mrs FP.
By letter dated 13 June 2017, the Crown Solicitor’s Office requested a report addressing various elements of the programme. Ms McNichol provided her report of 30 June 2017 in response to that request, at which time C was two years and one month old.
In the report, Ms McNichol found that C was familiar with her natural parents and brother, and the existence of visits between them, but did not show excitement about seeing them. Ms McNichol concluded that C did not have a particularly close relationship with them.
Ms McNichol reported that A, who, by this time, had recently been diagnosed with ADHD, misbehaved during the observed access visits. Ms McNichol made numerous recommendations for the purpose of strengthening the relationship of C with her biological family during access visits.
In addition to her written report, Ms McNichol was called by C’s legal representative to give evidence. In cross-examination, she denied that separation from Mr and Mrs FP would cause C nothing more than grief. Ms McNichol testified that that description minimized the probable effect on C if she were to be separated from Mr and Mrs FP.
The appellant’s evidence at trial
F gave evidence at trial, as did his father, DJ, and his mother, DC.
F acknowledged in his evidence that he had used methylamphetamine on occasions in the past but denied being a habitual drug user. He volunteered to undertake random drug testing. He denied allegations of family violence.
F gave the following evidence about his discussion with Ms Vogelsang about C’s care before she was born:
ANo. I had discussions with [Families SA] around I wanted to have a room ready in Adelaide to take [C] over to Adelaide and have her in the house that I’m living in while I got [A] back but [Families SA] told me that if I set up a room for [C] in Adelaide and got ready to have [C] that that would say to them that I’m not putting enough focus into [A] and that I wouldn’t get my son back if I focused on [C].
F testified that he repeatedly asked Families SA to allow him access to C and to arrange DNA testing:
AWell, I was also at the time having a lot of trouble even getting hold of Rachel [Vogelsang], me and mum were, I’d ring repeatedly, always take a message, she’ll be back tomorrow, it would take weeks just to get hold of her because I really needed referrals sent down to Adelaide, I needed to get things moving for [A] and on top of that I continued to ask for this DNA test and she kept telling me ‘Yeah, that’s underway, that won’t be long, just focus on [A] and I’ll send the referral down, that should be next week’. A month later, no referral, no test, so me and mum basically had to sort out the whole reunification with [A].
F acknowledged A’s behavioural problems but continued:
AJust, you know, sometimes it was hard to get him to settle when he’s a bit amped up and, you know, sometimes he repeats the same mistakes or doesn’t listen to you when you’re telling him what to do sometimes. But he’s a lot different know that he’s – I’m guessing he’s more settled with me also but the Ritalin, as well, has really helped him with that. He’s able to focus, he can hear what you’re saying, it’s not just in one ear and out the other. He doesn’t need to bounce around a room and demand attention from everyone.
DC is the paternal grandmother of C. F gave evidence at trial that A was placed in her care for about 15 months. DC testified that she rang Ms Vogelsang soon after C was born asking whether there would be a DNA test to establish paternity of C. DC gave evidence that, once F’s paternity was confirmed, she contacted Ms Vogelsang by email and informed her that she would like access to her granddaughter. She gave evidence that she would support F if C were to be placed in his care. DC confirmed that she had arranged for F to undertake courses to improve his parenting skills.
DJ is the paternal grandfather of C. He was married to DC, however they have since separated. Each have remarried. DJ gave evidence that he and his family supported the unification of C with F. In his evidence, he acknowledged that F would need significant support but confirmed that he was willing to provide it.
The Magistrate’s reasons
The Magistrate was critical of the views of Ms Nicolaou and found that she was heavily influenced by her empathy for Mr and Mrs FP. The Magistrate found that the reports of Ms Watherston and Ms Connor reflected a ‘similar bias’.[13] The Magistrate found:
Ms Watherston and Ms Connor have relied on the observations of Ms Nicolaou in coming to the conclusions they have reached in their reports. I have come to the conclusion Ms Nicolaou’s report is very heavily influenced by empathy she had with the foster carers after she visited them in Port Lincoln. This empathy has very strongly influenced her report and therefore the reports of Ms Watherston and Ms Connor. All of their reports have relied on information being provided by the foster carers as being accurate and unbiased. The change in attitude of Ms Nicolaou is apparent, not only from the notes which she has made and conversations she has had, for example, with Ms Vogelsang, but also from [F]’s perception of her attitude to him before and after she saw [Mr and Mrs FP]. I am of the opinion there has been a perception bias on the part of Ms Nicolaou which has resulted in similar bias in the later reports of Ms Watherston and the reports of Ms Connor.
[13] Magistrate’s Reasons [128].
The Magistrate found that it was not necessary to determine the veracity of the information C’s father gave during the trial:
It is not necessary for me to identify whether [C] was exhibiting behaviours which were the result of specific stressors in her life. I have no doubt [Mr and Mrs FP] and [L] have been stressed by the prospect of [C] being removed from their care. They have taken [C] into their home and into their hearts since she was 10 days of age. It is obvious she has been very much loved by her foster carers and continues to be so. She has become a member of their family and been provided with care and love at a very high level. That her carers are distressed at the prospect of her being taken from their care is reflective of the level of commitment they have made to her. Whether or not the carers were provided with negative information regarding [F]; the very fact it was necessary for [C] to be placed in foster care, of itself, would have caused them to reach some conclusion about her natural parents. Some of the comments made, in particular by Ms Vogelsang to the foster carers, have supported that view by the foster carers of [F]. It is hardly surprising they should therefore be concerned about the level of care their much-loved [C] will receive if returned to her father; their own stress as a result of [C] attending access with her father would inevitably have had some impact upon [C] and may explain some of the observations they have made.
The Magistrate was not satisfied that C was at ‘serious risk of suffering serious harm to her physical, psychological or emotional wellbeing’ if placed in the care of her natural father, ‘despite the evidence which has been given about the effects of severing her [C’s] primary attachment [to Mr and Mrs FP]’.[14]
[14] Magistrate’s Judgment, [162].
When addressing the risk of serious harm, the Magistrate concluded:
There can be no doubt given [C]’s attachment to [Mr and Mrs FP] that she will suffer grief at their loss if she is removed from their care. It is for the Minister to prove on the balance of probabilities that there is a significant risk that [C] will suffer serious harm to her physical, psychological or emotional wellbeing.
The Magistrate continued:[15]
… [F] has established a stable, organised and loving environment for [A]. In this he has been assisted by his extended family, in particular, his mother. If [C] is removed from the care of [Mr and Mrs FP] and placed into [F]’s care, she will go to a similar environment.[16]
[15] Magistrate’s Judgment, [160].
[16] Magistrates Judgment, [158].
The Magistrate ultimately found:
The Minister must satisfy the court that there is no parent able, willing and available to provide adequate care and protection for [C]. I am not satisfied on the balance of probabilities that that is the case, [F] is able, willing and available to provide adequate care and protection for [C].
The Magistrate delivered her reasons on 5 January 2018, declining to make any of the orders sought by the Minister. On the decision being handed down, C was removed from the care of Mr and Mrs FP and immediately placed in the care of F. C was then two years and eight months of age.
Appeal to the single Judge
On 29 January 2018, the Minister appealed against the Magistrate’s decision. It was argued that the Magistrate’s reasons, for failing to be satisfied that C would be at risk of serious harm if removed from Mr and Mrs FP, and for finding that F was ‘able, willing and available’ to adequately care for C, were inadequate. The orders sought in the Notice of Appeal were that C be placed under the guardianship of the Minister and several ancillary orders as to access.
On an interlocutory application made on 21 February 2018, Mr and Mrs FP were granted leave to intervene in the proceedings before the single Judge.
Mrs FP filed an affidavit sworn on 21 February 2018. The single Judge received de bene esse only paragraphs [10], [11], [16] and [17] of the affidavit. In those paragraphs, Mrs FP deposed that C had remained in their uninterrupted care from when she was 10 days old until 5 January 2018. Mrs FP deposed that until the decision of the Magistrate, C had never had overnight contact with F. She stated that since the order of the Magistrate, she and her family have not had any contact with C, or C’s biological family.
On 1 March 2018, prior to the appeal hearing, the Minister filed an interlocutory application which sought an order that C be returned to the care of Mr and Mrs FP pending the hearing and determination of the appeal. An affidavit of Ms Clare Simmons was filed by the Minister on 1 March 2018 in support of the interlocutory application. Ms Simmons is the Acting Director of Quality and Practice within Families SA.
The affidavit of Ms Simmons was the subject of objection from counsel for C. That objection was supported by counsel for F.
The Judge declined to receive the affidavit. When the Judge delivered her reasons, Her Honour held that the affidavit was inadmissible because SCR 286(2) did not apply in the absence of a statutory power to receive further evidence. [17] As we observed in [25] above, the statutory power is to be found in the nature of the appeal conferred by s 22 of the Youth Court Act.
[17] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [34].
In an affidavit sworn on 7 March 2018, in opposition to the Minister’s application, F deposed that since being returned to his care, C had attended occasional childcare for three hours, once per week. He stated that he was complying with the advice provided to him by a social worker at the Wesley Uniting Communities Service whom he had engaged to help with A’s adjustment to unification with C. He deposed that he had seen the social worker with C four times. He deposed he had not been contacted by Families SA, through a representative of Families SA, to arrange sibling access between C, A and S.
Even though the Judge erred in holding that the Court was not empowered to receive further evidence, we observe that neither the filing nor the receipt of F’s affidavit on the interlocutory application would have made the affidavit evidence on the appeal itself. There was no application to adduce evidence concerning C’s residence with F on the hearing of the appeal before the Judge.
The Judge dismissed the interlocutory application, finding that it was not appropriate to disrupt C’s placement when the appeal hearing was scheduled to commence on 9 March 2018.[18]
[18] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [35].
The Minister’s written submissions on the hearing of the appeal before the Judge adverted to the Judge’s power, if error by the Magistrate were found, to remit the matter to the Youth Court, but argued that the Judge should not do so and contended that a permanent guardianship order should be made. Neither C’s nor F’s counsel made a submission on the appeal before the single Judge before the single Judge that the matter should be remitted if error were found. Nor did F’s counsel attempt to support the Magistrate’s order by making an application to call further evidence on C’s psychological or emotional wellbeing whilst in his care.
On 19 March 2018, the Judge allowed the appeal and delivered her reasons.
The Judge rejected the Magistrate’s criticism of Ms Watherston’s ‘change of mind’ on the unification of C with F. The Judge found that because Ms Watherston’s initial recommendations, in her first two reports, were conditional on the positive development of the relationship between F and C, Ms Watherston’s change of mind ‘did nothing to discredit her’ as an expert witness. The Judge observed that on Ms Watherston changing her position there was no expert opinion supporting C’s unification with F. [19]
[19] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [51].
The single Judge was also critical of the Magistrate’s findings of perception bias on the part of Ms Nicolaou when, because Ms Nicolaou had not been called as a witness, she had no opportunity to answer the criticism. Nor was Ms Watherston called. Ms Connor was called but no such criticism was put to her.
The Judge was persuaded by the testimonial and documentary evidence of Ms Nicolaou, Ms Watherston, and Ms Connor:[20]
The evidence of the three expert witnesses presented by the Minister was, on its face, powerful. In essence, it was that removal at age two from the only carers C had known, to whom she was deeply attached, would cause serious harm to her welfare and development (Ms Nicolaou) or, ‘a major trauma’ in C’s life with a negative impact on all areas of her future development (Ms Connor). These opinions were not simply personal opinions of the three witnesses, nor even simply common sense, but opinions grounded in substantial research conducted over half a century. While Mr Abbott was inclined to dismiss attachment theory as a mere theory which the Magistrate was free to reject, the articles tendered show it has been well-documented and accepted. Not only that, its relevance in this case was attested to by the expert witnesses. There was no evidence to the contrary.
[20] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [48].
The Judge found that the Magistrate was wrong to find that removal would cause ‘mere grief’.[21]
[21] Magistrates Judgment at [160]; Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [31], [35] and [48].
The Judge observed that F’s suggestion that Mr and Mrs FP fabricated their accounts of C’s adverse behavioural response to access visits ‘reflects poorly on him.’[22]
[22] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [58].
The Judge proposed to make the orders originally sought by the Minister on 22 December 2016 by ordering that the Minister have guardianship of C until she attains 18 years of age. Her Honour found:
I have reached the position that the Magistrate did not give adequate reasons for her failure to be satisfied of the Minister’s case. The expert witnesses called were not contradicted by other evidence. The cross-examination of them, although prolix, did nothing to weaken their opinions. The reasons given for mistrust or doubt about their evidence – especially the evidence of Ms Nicolaou and Ms Connor – do not bear examination. The Magistrate did not really grapple with the thrust of the evidence, that separation would cause severe trauma of an ongoing nature, not merely ‘grief’.
In my view, the evidence dictated the conclusion that separation from the foster parents would constitute a significant risk that C would suffer serious harm to her physical, psychological or emotional wellbeing, against which she should have proper protection, that neither F nor M were able, willing or available to provide adequate care and protection for; and that the guardianship order sought was the best available solution having regard to C’s need for care and protection and her age, developmental needs and emotional attachments.[23]
[23] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [62].

The Judge did not address the question of remittal. That is not surprising because neither the appellant nor C’s counsel had contended that, in the event that the Magistrate’s orders were set aside for error, the matter should be remitted to the Youth Court.
On 19 March 2018, following the delivery of her Honour’s reasons, an oral application was made by counsel for the child, seeking a stay of her Honour’s orders. Her Honour adjourned that hearing for two days to allow parties to consider their positions.
No application was made for the Judge to revoke the order giving the Minister guardianship on the ground that the appellant and C’s legal representative had overlooked putting submissions on the question of remittal.
On 21 March 2018, the oral application seeking a stay of the Judge’s orders was pursued by C’s counsel, foreshadowing that an appeal would be brought to the Full Court. Neither the appellant nor C’s legal representatives argued the stay application on the basis that it would be a ground of appeal that, even if the Magistrate’s orders were correctly set aside, the Judge should have remitted the matter. The Judge dismissed the stay application:
As far as I can see, no question of law or principle in the mooted appeals. The suggested breach of attachment by the child to her father and brother if the stay is not maintained cannot be of the same degree or depth as that between the child and her foster parents, consequent upon the magistrate's decision. I rely on the evidence before the magistrate in saying so. I do not accept in the absence of evidence, that there will be any significant damage to the father and child relationship over the few months an appeal will take, even assuming my orders were ultimately set aside. That is particularly so as the Minister will be in a position to moderate damage by allowing access to the father.
C was immediately returned to the care of Mr and Mrs FP. At the time of judgment, C was two years and 10 months old. C remains in the care of Mr and Mrs FP and visitation has been re-established between F and C.
Appeal to the Full Court
The appellant submitted that the Judge erred in making a guardianship order over C until she attains the age of 18 without remitting the matter to the Youth Court to inquire into the circumstances of C’s placement with her father. The appellant relied on what was referred to as the presumption in s 38(2) of the CP Act which provides that before making an order giving custody or guardianship over a child, the Youth Court must be satisfied that there is no parent able, willing and available to provide adequate care and protection for the child. F contended that on allowing the appeal the Judge should not have been satisfied that that condition was met without hearing evidence on the placement of C with her father. [24] The appellant also contended that in failing to expressly consider whether or not to remit the matter instead of making a permanent guardianship order on the appeal, the Judge had failed to address the statutory discretion conferred by s 22 of the Youth Court Act. Counsel for F submitted that in the exercise of that discretion, great weight should be accorded to the specialised jurisdiction of the Youth Court in deciding residency and care arrangements which best protect the interests of children. Counsel for F contended that if there were reasonably arguable competing cases the matter should have been remitted.
[24] Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [62].
Counsel for F conceded that the issue as to whether the matter should be remitted or not was not raised in the course of the appeal before the Judge. She did not advance any valid reason for that oversight.
Counsel for the Minister, with whom the intervener also agreed, accepted that the Youth Court exercised a specialist jurisdiction. However, the Minister distinguished the Youth Court from the Family Court because the latter’s judiciary was generally selected from a specialised profession, whereas that is not the case with the judiciary of the Youth Court.[25]
[25] H v W (1995) 126 FLR 159 at 175.
The Minister relied on the case of Dasreef Pty Ltd v Hawchar[26] to contend that this Court should find that it was appropriate for the single judge on appeal to make a final determination, rather than remitting the matter to the Youth Court for rehearing.
[26] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 607.
Mr and Mrs FP accepted that generally it may be preferable for matters to be remitted to a specialist court if the competing claims are meritorious. Mr and Mrs FP contended that the evidence to be considered is the evidence at trial.[27] Mr and Mrs FP submitted that one would need compelling material to set aside the established principle of attachment theory, a theory bolstered by the academic articles cited in the Reunification Assessment Report of Ms Nicolaou, to undermine the thrust of the expert evidence at trial.
[27] Fox v Percy (2003) 214 CLR 118, H, A v Minister for Families and Communities [2005] SASC 339, confirmed in CSR Ltd v Della Maddalena (2006) 80 ALJR 458.
Mr and Mrs FP argued that the Supreme Court has inherent jurisdiction in dealing with the best interests of the child and the very existence of that parens patriae jurisdiction was a reason to regard this Court as having expertise to make orders on appeal.
Application to adduce further evidence made by the appellant
In the course of submissions when the appeal was first listed for hearing on 6 September 2018, the appellant informed the Court that he wished to adduce further evidence in support of the appeal.
The Minister opposed the appellant’s application to adduce further evidence. In the alternative, the Minister foreshadowed that if permission were given he wished to adduce evidence from Ms Tamara Muller, a psychologist with Families SA, who has assisted C since April 2018 to help repair the disruption in her care during the period of her residency with F.
Mr and Mrs FP reserved their position to call evidence in rebuttal.
The Court adjourned the hearing of the appeal to enable the appellant to file an application to adduce further evidence. That application was filed on 2 October 2018.
On the resumed hearing of the appeal, all parties consented to this Court receiving outlines of the evidence which the parties would call if permission were given to adduce further evidence on appeal and as to the evidence they would call if the question of the making of a permanent guardianship order were to be remitted to the Youth Court.
The appellant’s counsel foreshadowed that F would call evidence from:
1.Dr Jon Jureidini, Professor of Paediatric Psychiatry at the Women’s and Children’s Hospital, to the effect that:
·       attachment refers to an infant’s self-preserving strategies in relationship to caregivers.
·       attachment is one of many matters to be taken into account when considering unification or reunification.
·       other factors include the respective child-sensitive environments of the foster placement and the parent.
·       a child with a secure attachment to one adult figure is more likely to be able to establish a secure attachment with other adults, not by transferring the attachment from one to another, but because of a preparedness to use the new relationship as a source of safety and comfort.
·       if reunification is feasible and desirable, a primary assessment of the potential harms and benefits to the child of the transition must be considered.
·       the child’s age is an important consideration, but there is no age at which reunification can or cannot be considered.
·       if a child is not unified with a biological parent who has adequate parenting capacity, her or she may come to resent the denial of the opportunity to be raised by his or her biological parent(s).
2.F, who would give evidence on his relationship with C and, in particular, on their relationship whilst C resided with him between 5 January 2018 and 19 March 2018.
3.DC, the paternal grandmother of C, who would give evidence on her relationship with C generally and in the period in which she resided with F, and on the relationship between them.
4.DJ, the paternal grandfather of C, on the relationship between himself and C and between F and C in the period when C resided with her father.
It will be observed, and is of significance, that Dr Jureidini has not expressed an opinion on where C’s best interests lay. To do so, he would need to consider the proffered evidence from F, DC and DJ, Mr and Mrs FP and the psychologists and social workers who have observed and supported C. Dr Jureidini may also wish to interview C. It is not possible to know what Dr Jureidini’s opinion might be after that long process has been completed.
The appellant issued a subpoena to Uniting Communities for all documents, reports, file notes, case notes, and any other documents related to Ms Kaylene Gurr’s therapy and/or counselling sessions with F.
The subpoena was returned on 5 November 2018. On this date C’s legal representative was given an opportunity to make any necessary redactions before it was made available to the other parties. Such minor redactions as were made were not disputed by the other parties. From that material the following appears.
F first contacted United Communities in August 2017 for support in preparing A for C’s arrival, should orders be made placing C with him. On 1 March 2018, when C was living with F, the counsellor assigned to support F was contacted by his solicitor who discussed the provision of a report on C’s welfare.
On 8 February 2018, Ms Gurr spoke with F. He described his routine with C. He discussed A’s commencement of the school year. Ms Gurr asked F if he felt he needed help. He responded that ‘He is doing okay’. He told Ms Gurr that he felt that it was good for him to keep in touch with her because of the pending litigation (on appeal to this Court) over C’s placement.
Ms Gurr attended F’s home on 8 March 2018. The notes of that attendance show that Ms Gurr did little more than take a history from F about the proceedings. F spoke of his challenge being to discover ‘how to support A and C understand what their family looks like now and how to include C’s foster parents’. Ms Gurr suggested making a family tree.
Ms Gurr telephoned F on 29 March 2018 and F informed her that C had been returned to her foster parents. There was a discussion about A’s welfare.
The Minister foreshadowed that, if permission were given, evidence would be adduced in rebuttal from Ms Tamara Muller, Principal Clinical Psychologist. Ms Muller would give evidence that:
·She had provided 18 therapeutic counselling sessions for C between April and September 2018, when she was returned to Mr and Mrs FP.
·Her opinion was that C exhibited healthy attachment behaviours to Mr and Mrs FP.
·That Mr and Mrs FP were exceptionally skilled at parenting.
·It was therapeutically important and that further trauma would be occasioned if C were returned to F.
·C continued to require therapy because of ongoing difficulties related to the disruption of her primary attachment relationships.
·The continued uncertainty regarding C’s long-term care arrangements negatively affects C and all of her family, including Mr and Mrs FP.
The interveners, Mr and Mrs FP, foreshadowed that they would adduce evidence that:
·C’s behaviours after access with the appellant were suggestive of distress.
·F did not allow Mr and Mrs FP to communicate with him about the transition of C’s care from them to him, other than through the Department for Child Protection and his solicitors.
·C’s sister, who remained in their care, became distressed after C’s removal.
·F did not allow Mr and Mrs FP or C’s sister access to C until March 2018, when the hearing before Vanstone J was part heard.
·They had only one access visit in the 10 week period.
·C’s behaviours after her return to their care suggested that she had been exposed to aggressive behaviours whilst in the appellant’s care.
·C’s distress at the prospect of separation from Mr and Mrs FP when they left the house.
·They had provided good and supportive care to C after she was returned to their home.
·C’s behaviours and comments indicated that C saw her home as being with Mr and Mrs FP.
They would also adduce evidence from a social worker provided by Centacare who has supported Mr and Mrs FP since mid-2016, who would give evidence of a good relationship between C and Mr and Mrs FP and her excitement at returning ‘home’.
Discussion
The preceding lengthy recitation of the litigation history of this matter was necessary in order to expose the depth of the problems presented by this appeal. The burden of resolving this case in C’s best interest is a heavy one. In summary, the following failings in the administration of the CP Act have made it more difficult to identify the best residential and care arrangements for C:
1.The delay in arranging paternity testing in 2016;
2.The delay in establishing and, to the extent appropriate, increasing the frequency of contact between C and F in 2016 and 2017;
3.The adjournment of the trial of the Minister’s application in June 2017;
4.Counsel for C and counsel for F’s omission to contend on the hearing of the appeal before the Judge in February 2018 that the matter should be remitted to the Youth Court if the appeal were allowed;
5.The failure of counsel for C and F to seek to lead further evidence of F’s care of C and of expert opinion on whether his care adequately addressed the grief over her separation from Mr and Mrs FP on the appeal before the Judge; and
6.The omission of counsel for F to prepare evidence of the kind just referred to for the purpose of making an application for permission to adduce it on the appeal to the Full Court prior to the first listing of the appeal on 6 September 2018.
The Magistrate’s capacity to determine F’s capacity to care for C, and the placement which best protected C from harm, was limited because C had not yet lived, or even stayed overnight, with F. The evidence of F’s capacity to provide the necessary care was therefore dependent on the proffered expert opinions based on the necessarily limited and artificial constraints of his contact visits.
Nonetheless, on the limited evidence the Magistrate formed the decision that F did have the capacity to care for C, even though her Honour’s reasons for reaching that conclusion did not sufficiently meet the legal standard. The Judge, on the face of the written reports and transcript, and without hearing F’s testimony, reached the opposite conclusion.
If an application to remit C’s matter to the Youth Court had been supported by evidence of the appellant’s care of C in the intervening period which was sufficient to discharge an evidentiary burden that he had the capacity to properly care for her, there would have been strong reasons to remit the proceedings to the Youth Court.
The institutional experience of the Youth Court in resolving disputes over the residence and care arrangements which best protect children cannot be overstated. The parens patriae jurisdiction of this Court is rarely invoked and when it is, it is not for the purpose of deciding controversies over the placement and guardianship of children. On the other hand, the judiciary of the Youth Court hear such matters day in and day out. In doing so, they come to obtain a deep understanding of child psychology, the emotional needs of children and of the wide range of very diverse ways in which children can be successfully cared for. Moreover, the judiciary of the Youth Court have the invaluable experience of monitoring child care arrangements over time, of seeing which arrangements work and which do not, and in accumulating insights into the reasons for the successes and breakdowns of child placements. The judiciary of the Youth Court make those assessments dispassionately and independently of the officers and experts of Families SA whose opinions may, through pressure of work, sometimes be mistaken. Finally, the Youth Court also develops an understanding of family dynamics and their effects on children in its criminal jurisdiction.
The branches of the legal profession from which the judiciary of the Youth Court and the Family Court are selected is not a relevant distinction. It is the accumulated and shared judicial experience which is important. In any event, the appeal division of the Family Court, even though it is drawn from the same branch of the profession as the trial division, accords trial judges a great deal of deference because of the advantage which is derived from first instance exposure to these issues. The submission of counsel for the Minister should, in this respect, be rejected.
In the generality of cases, if an order of the Youth Court as to the care and placement arrangements for a child is set aside for an error of fact or law, but the proper placement of the child remains genuinely and reasonably contestable, the matter should be remitted to the Youth Court. On remitting the matter to the Youth Court, this Court can expect the Youth Court to move quickly, allowing the parties the minimum amount of time necessary to present evidence addressing the proper placement of the child.
In this matter time has moved on since the missed opportunity of calling further evidence and arguing for a remittal before the Judge. F’s solicitor and counsel unsuccessfully brought an application to appeal to this Court on a multiplicity of grounds which contested the Judge’s findings that the Magistrate’s reasons were inadequate. Permission to appeal on those grounds was refused. Permission was granted only on those two grounds challenging to the failure to remit the matter. However, in the time from the lodgement of the Notice of Appeal to this Court, through to the limited grant of permission on 27 June 2018, and the first hearing on 6 September 2018, the solicitors and counsel acting for F made no attempt to collect and adduce either direct evidence of C’s emotional and physical care whilst living with F, or any expert opinion based on his care of C in that period.
C has long been in the care of Mr and Mrs FP. The evidence that Mr and Mrs FP are providing high quality care is compelling. C’s short time with F is now probably a quickly receding memory. The evidence outlined by F on the appeal still falls short of establishing a reasonable case for reversing the Judge’s order because of the absence of any concluded psychiatric or psychological opinion. There still is no expert opinion supporting a placement with F.
For those reasons, we would dismiss the appeal. Whether or not the Youth Court would entertain an application to vary or revoke an order will be a matter for it to determine. In the ordinary course, an application brought soon after a final order for permanent guardianship is made would be an abuse of process. However, in this case the evidence of C’s time with F has not been judicially considered. Depending on the expert evidence which F might still obtain, and depending on how much more time elapses, the Youth Court may entertain an application to vary or revoke an order on its merits.
Conclusion
We would dismiss the appeal.