Minister for Child Protection v T, SJ - [2018] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
MINISTER FOR CHILD PROTECTION v T, SJ & ORS
[2018] SASCFC 46
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
7 June 2018
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 - APPLICATIONS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
On 7 February 2018, the Minister made application for an order that a child, already subject to a short term order, be placed under the guardianship of the Minister until she attains 18 years of age. The application proceeded pursuant to s 38 of the Child Protection Act 1993 (SA).
On 26 February 2018, some sections of the Children and Young People (Safety Act) 2017 (SA), including s 59, commenced operation. The balance is to commence on 22 October 2018. Section 38 of the Child Protection Act remains in force until that date.
The Judge of the Youth Court reserved three questions of law. The first two questions concern whether section 59 of the new Act - which places the onus of proof onto a person objecting to the order sought - applies to the application. The third question is premised on s 59 applying.
Held, per Vanstone J (Kourakis CJ and Nicholson J agreeing): Section 59 of the Children and Young People (Safety) Act does not apply to an application for a guardianship order made under s 38 of the Child Protection Act.
Youth Court Act 1993 (SA) s 23; Supreme Court Act 1935 (SA) s 48(1); Children and Young People (Safety) Act 2017 (SA) s 45(2), s 50(3), s 59; Children's Protection Act 1993 (SA) s 37, s 38, s 38(a1)(a), s 38(2); The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2018 (SA) s 34(1), s 24(2), referred to.
Thiess v Collector of Customs (2014) 250 CLR 644, applied.

MINISTER FOR CHILD PROTECTION v T, SJ & ORS
[2018] SASCFC 46
Full Court: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: I agree with the answers proposed by Vanstone J and with her Honour’s reasons.
VANSTONE J: Pursuant to s 23 of the Youth Court Act 1993 (SA) the Judge of the Youth Court has reserved questions of law arising in proceedings for determination by the Supreme Court.
Section 48(1) of the Supreme Court Act 1935 (SA) provides that the jurisdiction “vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court”. On 14 May 2018 the Full Court ordered that this Court consider the three questions reserved.
The questions arise in the factual context provided in the document referring the matter. The facts are given as follows:
1.On 7 February 2018, the Minister for Child Protection (the Minister) applied for orders that [N] (the child) be placed under the guardianship of the Minister until she attains the age of 18 years. A copy of the application is attached.
2.As at 7 February 2018, the child was under the guardianship of the Minister pursuant to an order of the Youth Court made on 16 February 2017. A copy of that order is attached.
3.On 26 February 2018 parts of the Children and Young People (Safety) Act 2017 (CYP Act) commenced operation.
The questions reserved are as follows:
1.Is the Minister’s application in this matter, an application for an order for the purposes of s59(1) of the CYP Act?
2.Given the date of the commencement of the CYP Act and the date of the Minister’s application, is the matter a proceeding to which s59(2) of the CYP Act applies?
3.To make an order giving custody or guardianship of a child to a person who is not a parent of the child, section 38 of the CP Act requires the Court to be satisfied of the following matters:
3.1     that the grounds of the application have been made out (s38(a1)(a));
3.2 that an order under section 38 should be made in respect of the child (s38(a1)(b));
3.3     that there is no parent able, willing and available to provide adequate care and protection for the child (s38(2)(a)); and
3.4     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.
In respect of the proof of which of those matters does s59(2) of the CYP Act place the onus on the person who objects to the making of the order?
For the following reasons I would answer the questions:
Question 1:No.
Question 2:No.
Question 3:Does not arise.
The legislative regime
On 26 February 2018 some parts of the Children and Young People (Safety) Act 2017 (SA) (“the Safety Act”), including s 59, commenced operation. The balance will commence on 22 October 2018. Sections 3, 5 and 7 of the Children’s Protection Act 1993 (SA) (“the CP Act”), containing the objects and principles of that Act, were repealed with effect on 26 February 2018. As a consequence, from 26 February 2018 until 22 October 2018, the amended CP Act and the parts of the Safety Act that have commenced will each have a sphere of operation within the Youth Court’s care and protection jurisdiction.
Section 38 of the CP Act currently remains the source of the Youth Court’s power to make an order for guardianship or custody of a child. In considering an application for a care and protection order pursuant to s 38, the Youth Court undertakes a two stage task. First, it must consider whether the power to make an order has been enlivened. As with other orders sought under Part 5, Division 2, this requires the Court to be satisfied on the balance of probabilities that the grounds of the application have been established: s 38(a1)(a). The grounds upon which the Minister may make an application for a care and protection order are set out in s 37. The meaning of one of those grounds, being that the child is at risk, is provided in s 6(2). Then, in the specific case of an application for an order giving guardianship or custody to a person other than a parent, s 38(2) requires the Court to be satisfied on the balance of probabilities that:
(1)there is no parent able, willing and available to provide adequate care and protection for the child: s 38(2)(a); and
(2)the order is the best available solution having regard to the child’s need for care and protection (including emotional security) and the child’s age, developmental needs and emotional attachments: s 38(2)(b).
The second stage of the task – which is common to all applications under Part 5, Division 2 – is that the Court must be satisfied that an order should be made in respect of the child: s 38(a1)(b). The Court may then make one or more orders of the various types listed in s 38(1).
Section 45(2) of the CP Act provides that a fact is sufficiently proved if it is proved on the balance of probabilities. Historically, where the Minister has made an application for an order under this Division the Minister has undertaken the burden of persuading the Court that the grounds of the application have been made out, that there is no parent able, willing and available to provide adequate care and that the order is the best available solution, and also that one or more of the orders envisaged in s 38(1) should be made.
This situation may be contrasted with that which will apply under the Safety Act on and after 22 October 2018 when the balance of its provisions come into operation. The new provisions will simplify the process, at least ostensibly. Section 53 will provide the Court with a broad discretion to make a range of orders “where it is appropriate to do so”: s 53(1). The Safety Act does not identify specific factual matters of which the Court must be satisfied before an order may be made. The criteria for making an application, found in s 50(3), and the grounds of the application will be relevant in identifying whether it is appropriate for the Court to make the order sought.
Section 59 of the Safety Act, which gives rise to the questions reserved, provides as follows:
59—Onus on objector to prove order should not be made
(1)This section applies to proceedings on an application to the Court for orders relating to a child or young person who is, pursuant to an order of the Court, under the guardianship, or in the custody, of the Chief Executive or another person or persons.
(2)If in proceedings to which this section applies a person objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made.
(3)However, subsection (2) does not apply where the person objecting to the making of the order is—
(a) the Crown; or
(b) if the Court is satisfied that the child or young person to whom the proceedings relate is not being unduly influenced by any person to object to the making of the order—the child or young person.
It would be expected that s 59 would operate in this way. A guardianship or custody order would have been made already. Section 59 is predicated on that basis. Further or other orders must have been sought in relation to that child. In prosecuting the application for such further or other orders, the Minister, the Chief Executive or a person authorised by the Chief Executive would bear an evidentiary onus to show why such further or other orders should be made. It is at that point that the onus would fall on an objector (save an objector coming within s 59(3)) to prove that the orders should not be made.
Consideration
The first and second questions reserved raise the issue whether s 59 of the Safety Act applies in relation to the present application and proceedings upon it.
The task presented is one of statutory construction. It requires consideration of the statutory text, in the context of the legislative scheme, having regard to its purpose. In Thiess v Collector of Customs (2014) 250 CLR 664 at [22] the High Court affirmed the approach:
“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”
There are textual and contextual reasons why s 59 should be held not to apply in the transitional period.
The reference to the Chief Executive in s 59(1) is anomalous in the context of a pre-existing order of the Court made under the CP Act. Under parts of the Safety Act which will come in to operation on 22 October 2018 the Chief Executive of the Department will replace the Minister as the person who will be appointed to be the guardian or custodian of a child or young person pursuant to orders under s 53 of that Act. Hence the reference to the Chief Executive in s 59. The Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) makes provision for a transition between the two regimes. Section 24(1) and (2) of that Act provides as follows:
24—Chief Executive to be guardian of certain children and young people
(1)This section applies to a child or young person who was, immediately before the commencement of this section, under the guardianship of the Minister pursuant to an order of the Court under the repealed Act.
(2)On the commencement of this section a child or young person to whom this section applies will, by force of this subsection, be taken to be under the guardianship of the Chief Executive.
However, s 24 will not operate until 22 October 2018. That s 59 refers to the Chief Executive is a strong indication that s 59 is not to operate in the circumstances of the present application by the Minister.
Furthermore, s 59 could only operate on its terms if the Minister were found to be encompassed by the expression “another person or persons” in s 59(1). The Minister is specifically referred to, not only in the CP Act, but also in the Safety Act. That is a clear contextual pointer to an intention that the expression “another person or persons’” is not to encompass the Minister.
There is at least another consideration. Were s 59 to be superimposed on the existing regime governing applications for guardianship and custody orders, it might be expected to operate as follows. The burden on the applicant to make out the grounds of the application, imposed by s 38(a1)(a), would remain. In this case that burden would be on the Minister. Any other approach would seem unworkable. However, the application of s 59(2) could then be seen to require the objector to “prove to the court that the order should not be made”. This approach in terms of ascribing burdens was the preferred interpretation offered by the Solicitor-General upon the hearing in this court, on the assumption that s 59 applied to the current application. However, it is unsatisfactory. Even in theoretical terms, it is unappealing to construe s 38(a1) together with s 59 of the Safety Act, as casting burdens in two different directions. Indeed the language of s 38 refers to the Court’s satisfaction rather than to an onus of proof. The language of s 38(a1)(b) – “that an order … should be made” – collides with the language in s 59(2): “that the order should not be made”. Finally, once the applicant satisfies the Court that the grounds of the application have been made out, it is difficult to see that much will turn on the location of a burden with respect to whether an order should be made.
Conclusion
For the foregoing reasons I would hold that s 59 of the Safety Act has no application in the proceedings arising from the Minister’s application for the child to now be placed under the guardianship of the Minister until the child attains 18 years of age.
The questions reserved should be answered as follows.
Question 1:No.
Question 2:No.
Question 3:Does not arise.
NICHOLSON J: I would answer the questions in the manner proposed by Vanstone J. I agree with her Honour’s reasons.