M, L v The Minister for Education & Child Development

[2018] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

M, L v THE MINISTER FOR EDUCATION & CHILD DEVELOPMENT & ORS

[2018] SASCFC 54

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)

19 June 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN

Application for permission to appeal to the Full Court against the judgment of a Judge of this Court allowing an appeal against a decision of the Youth Court concerning the guardianship of a child.  The order appealed against is the dismissal of an application by the Minister that C, a child of about two years of age, be placed under the guardianship of the Minister until she attains 18 years of age.   The application for guardianship was opposed by C’s natural father and the child’s representative.

One ground of appeal, ground 8, complains that the Judge erred in making the order of permanent guardianship instead of remitting the matter to the Youth Court for a rehearing.

Held, granting permission to appeal:   this Court gives permission on ground 8, with the elaboration that it encompasses the question just identified as to the choice between remittal or final determination on appeals in child protection matters.  Permission is also granted on ground 10, but only to the extent that that ground touches on the appropriateness of the Judge, on appeal, making a final determination as to where the best interests of the child lay, instead of remitting the matter to the Youth Court.

M, L v THE MINISTER FOR EDUCATION & CHILD DEVELOPMENT & ORS
[2018] SASCFC 54

Full Court:  Kourakis CJ, Bampton and Doyle JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court against the judgment of a Judge of this Court allowing an appeal against a decision of the Youth Court concerning the guardianship of a child.  The order appealed against is the dismissal of an application by the Minister that C, a child of about two years of age, be placed under the guardianship of the Minister until she attains 18 years of age.   The application for guardianship was opposed by C’s natural father and the child’s representative.

2. C and her sister, S, live with foster parents.  C’s father has had the care of her five year old brother, B.

3. On the appeal the father and C supported the Magistrate’s orders.  The Judge found that the Magistrate did not give adequate reasons for her failure to be so satisfied and, to the extent that reasons were given, they did not justify the position reached.  The Judge set aside the Youth Court’s dismissal of the application and made a permanent guardianship order.

4. The grounds of appeal, by and large, challenge the conclusion that the reasons were inadequate and the findings that C would be at risk if she were removed from the care of her foster parents and that it was in her best interests for the order to be made. 

5. The Judge’s decision to set aside the Magistrate’s decision turns purely on errors in the reasoning of the Magistrate.  The applicant’s complaints that the Judge’s conclusions were wrong are not arguable.  Nor do the complaints raise any question of general importance. 

6. One ground of appeal, ground 8, complains that the Judge erred in making the order of permanent guardianship instead of remitting the matter to the Youth Court for a rehearing.

7. The Youth Court is a specialist court with institutional experience and expertise in determining disputed applications for guardianship.  Generally, if a decision of a specialist court is attended by error, it is preferable that the matter be remitted for rehearing by that specialist court.  Moreover, making a judgment about who would best care for a child requires an assessment of the evidence of the parents, foster parents and experts, all of whom may be called.  That assessment will generally be assisted by the engagement with a witness which comes from hearing his or her testimony.  On the other hand, in matters of guardianship, it is important in the interests of the child, his or her parents and the foster parents, that disputes over guardianship be settled quickly.

8. Accordingly, this Court gives permission on ground 8, with the elaboration that it encompasses the question just identified as to the choice between remittal or final determination on appeals in child protection matters.  Permission is also granted on ground 10, but only to the extent that that ground touches on the appropriateness of the Judge, on appeal, making a final determination as to where the best interests of the child lay, instead of remitting the matter to the Youth Court.