Minister for Child Protection v T, SJ

This matter came before the Full Court of the Supreme Court of South Australia on a case stated by Nicholson J. The appeal concerned the application of section 59 of the *Children's Protection Act 1993* (SA) (the "Safety Act") to proceedings initiated by the Minister for Child Protection seeking guardianship orders for a child.

The central legal issue before the court was whether section 59 of the Safety Act, which deals with the burden of proof in certain applications, applied to the Minister's application for a guardianship order under section 38 of the same Act. Specifically, the court had to determine if section 59 imposed an obligation on an objector to prove that a guardianship order should not be made, or if the existing burden on the Minister to satisfy the court of the grounds for the order remained.

The court reasoned that section 59 of the Safety Act had no application to the Minister's application for guardianship. The court found that the language of section 38, which refers to the court's satisfaction rather than an onus of proof, and the conflicting language in section 59(2) regarding whether an order "should not be made," made it unworkable and theoretically unappealing to apply section 59 in this context. Furthermore, once the applicant (the Minister) satisfied the court of the grounds for the application, the location of a burden of proof regarding whether the order should be made would be of little consequence.

Consequently, the court answered the reserved questions as follows: Question 1: No. Question 2: No. Question 3: Does not arise. Nicholson J agreed with the reasons provided by Vanstone J.