Minister for Education and Child Development v M - [2017] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v M
[2017] SASC 181
Judgment of The Honourable Justice Blue
8 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
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 - OTHER MATTERS
Appeal against judgment of Youth Court relating to guardianship of and living arrangements for two children.
The appellant Minister applied for a guardianship order under s 38 of the Children’s Protection Act 1993 on grounds including that there is a significant risk that the children will suffer serious harm to their well being against which they should have but do not have proper protection and their guardians are unable or unwilling to care for and protect or unable to exercise adequate supervision and control over them.
A Magistrate in the Youth Court was satisfied that the grounds of the application had been established. The Magistrate made orders including that the children be placed under the Minister’s guardianship for two months; during the first month the mother have continuous access to them from Wednesday afternoon until Monday morning and during the second month they live with the mother.
The Minister appeals against the orders on four grounds.
Held (allowing the appeal):
1. The reference in s 38(1)(c) and (d) of the Act to “guardianship” encompasses all rights and duties of a parent including the right to control custody of and access to a child (at [53]).
2. Subsection 38(1)(f) empowers the Court to make orders providing for access to a child under the guardianship of the Minister but “access” means short term discontinuous care and control subservient to the dominant custody of a child (at [56]-[57]).
3. Having placed the children under the guardianship of the Minister, the Magistrate did not have power under s 38 to make orders that the children live continuously with the mother or spend five nights per week with the mother (at [61]).
4. Having been satisfied that the grounds of the application were made out, the Magistrate erred in ordering that the children live continuously with the mother during the second month or spend five nights per week during the first month (at [69]).
5. Appeal allowed. Orders by the Magistrate set aside. The matter to be remitted to the Youth Court to hear and determine the application (at [72]).
Children’s Protection Act 1993 (SA) sections 6, 37, 38, 43 and 51, referred to.
Hewer v Bryant [1970] 1 QB 357; Wedd v Wedd [1948] SASR 104; Youngman v Lawson [1981] 1 NSWLR 439, discussed.

MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v M
[2017] SASC 181
Magistrates Appeal: Civil
BLUE J:

This is an appeal against a judgment of a Magistrate in the Youth Court relating to the guardianship of and living arrangements for two children.
The appellant Minister for Education and Child Development applied for orders that the respondent children of the respondent parents be placed under the guardianship of the Minister until attaining 18 years of age on grounds including that:
· there is a significant risk that the children will suffer serious harm to their wellbeing against which they should have but do not have proper protection;
· the guardians of the children are unable or unwilling to care for and protect, or unable to exercise adequate supervision and control over, the children.
After a hearing during which the Magistrate heard evidence from a psychologist and a social worker employed by the Department for Child Protection and from the respondent parents, the Magistrate made orders pursuant to section 38 of the Children’s Protection Act 1993 (SA) (the Act) that:
1.     the respondent children be placed under the guardianship of the Minister for two months;
2.     during the first month of the guardianship the mother have continuous access to her children from the end of school each Wednesday until the commencement of school on the Monday morning;
3.     during the second month the children live with the mother;
4.     thereafter the children be returned to the full time care of the mother;
5.     the mother enter into a written undertaking for the first ten months thereof to care for the children and comply with other stipulated conditions, including permitting up to one weekly unannounced random inspection by the Department during specified hours;
6.     the father have supervised access to the children elsewhere once per week;
7.     the children be under the supervision of the Chief Executive for the period of the undertaking.
The Minister appeals against the orders on the following grounds:
1&2.The Magistrate acted in excess of the jurisdiction granted by subsection 38(1) of the Act in making orders 2 and 3 in circumstances where there is no statutory power to make such orders, they are tantamount to orders for custody and they are inconsistent with the grant of guardianship.
3.In the alternative to grounds 1 and 2, orders 2 and 3 are inconsistent with the Magistrate’s satisfaction that the grounds of the application were made out, including that there is a significant risk that the children will suffer serious harm against which they do not have proper protection and their guardians are unable or unwilling to care for and protect them.
4.In making an order for guardianship for only two months and in refusing to make an order for guardianship of children until the age of 18, the Magistrate failed to take into account mandatory considerations of keeping the children safe from harm, the children’s need for care and protection including emotional security and the children’s age, developmental needs and emotional attachments; erred by rejecting the expert opinion evidence of the Department psychologist in the absence of any evidence or other basis on which to do so; and erred by not drawing an inference from the failure of the mother to call Mr Guarna, her psychologist, that his evidence would not have assisted her case.
Background
The first respondent M was born in 1980. She had a difficult upbringing. She was living on the streets at the age of 13, using cannabis, cocaine, heroin and methamphetamine.
M’s eldest son A was born in 2000. A’s father was violent to M and the relationship ended at about the time that A was born. M’s elder daughter B was born in 2003. M was in a relationship with B’s father between around 2000 and 2003.
M began a relationship with the second respondent F in 2006. In January 2009 their daughter the third respondent D was born. In August 2010 their son the fourth respondent S was born.
Between 2005 and August 2016 there were approximately 60 notifications to the Department in relation to M’s children. The notifications related to what the notifier characterised as physical abuse, emotional abuse, sexual abuse, neglect and exposure to parental domestic violence and substance abuse. They included fourteen notifications between September 2010 and March 2016 of physical abuse of A and/or B by F. Department officers attended at the premises on at least one occasion and did not make any adverse observations.
On 15 August 2016 F hit A and B with an axe handle. On 16 August B reported it at school and then to the police. B went to live with her cousin C and has not returned to M. The police arrested F, charged him with aggravated assault and he was released on bail. The police obtained an interim intervention order against F in relation to B. F later pleaded guilty in the Magistrates Court to the charge of aggravated assault and was released on a bond to be of good behaviour.
On 21 September 2016 B made a complaint to C that she had been sexually abused by F since she was 7. The police arrested F and charged him with persistent sexual exploitation of a child and sexual intercourse with a person under 14 years of age and he was remanded in custody. In January 2017 F was remanded on home detention bail. The charges have been listed for trial in the District Court in February 2018.
On 23 September 2016 an officer of the Department removed D and S from M’s premises and placed them in the care of C.[1] On 26 September a Magistrate made orders granting custody of B, D and S to the Minister and for examination and assessment.[2] This order was extended on 3 November 2016.
[1] Children’s Protection Act 1993 (SA) s 16.
[2] Children’s Protection Act 1993 (SA) s 21.
Up to 23 September 2016 M and F were smoking cannabis daily and using methamphetamine twice weekly. After F was re-arrested, M weaned herself off cannabis and methamphetamine.
On 14 October 2016 Ebony Stewart-Davis, a psychologist employed by the Department, observed M with A, D and S. On 17 and 18 October she undertook a cognitive assessment of and interviewed B. On 19 and 20 October she interviewed D and S.
On 21 and 24 and 27 October 2016 Ms Stewart-Davis interviewed C and M. On 3 November she interviewed F.
Between 26 October and 8 November 2016 Ms Stewart-Davis conducted an interview and telephone interviews with staff members from the children’s school.
On 21 November 2016 Ms Stewart-Davis completed a psychological report in relation to B, D and S.
On 25 November 2016 Gail Hillyer and Rachel Yeaman, social workers employed by the Department, completed a report in relation to B, D and S.
On 25 November 2016 the Minister applied for orders that B, D and S be placed under the guardianship of the Minister until attaining 18 years of age.[3] The application was made on the grounds that:
1.There is a significant risk that the children will suffer serious harm to their physical, psychological or emotional wellbeing against which they should have, but do not have, proper protection.
2.The children have been or are being abused and neglected.
3.The guardians of the children are unable or unwilling to care for and protect the children, or are unable to exercise adequate supervision and control over the children.
[3] Children’s Protection Act 1993 (SA) ss 37-38.
The trial
The trial of the guardianship application proceeded on 3 February, 27 and 28 March, 7 April and 28 and 29 June 2017.
The Minister called Ms Hillyer and Ms Stewart-Davis to give evidence. Their reports were tendered. The Minister tendered a record of interview of B conducted by the police. The Minister also tendered various reports and other documents.
M and F each gave evidence. They also tendered various reports and other documents.
The Magistrate’s reasons for judgment
The Magistrate delivered reasons and made orders on 26 July 2017. The Magistrate found that each of the three grounds of the Minister’s application had been established.
The Magistrate found that Ms Stewart-Davis was unrealistically entrenched in her opinions which had led to her making unwarranted justifications for her conclusions.
The Magistrate referred to M as having been portrayed as lacking insight and being difficult to engage with, in large part due to her hostility to officers of the Department; it being said that she was resistant to change, the implication being that she could not really change through efforts made outside of the Department. The Magistrate disagreed with this assessment.
The Magistrate found M to be a truthful, candid and impressive witness and person and generally accepted her evidence. He considered that she has a good level of insight, strong motivation and is diligently working towards gaining and improving on the necessary skills to be a mother. The Magistrate rejected the Minister’s contention that M lacks sufficient capacity to address her parenting issues within the next 12 months.
The Magistrate made orders:
1.That [D] and [S] be placed under the guardianship of the Minister for a period of two months.
2.That during the first month of this period of guardianship the mother have continuous access to her children in her home from the end of school each Wednesday until the commencement of school on the Monday morning.
3.During the second month of this period of guardianship the children shall live with the mother.
4.At the expiration of the period of guardianship the children shall be returned to the full time care of the mother
together with orders 5 to 7 summarised at [3] above.
On 25 August 2017 a Judge of this Court, on the Minister’s application, granted a stay of the Magistrate’s orders pending the hearing and determination of this appeal.
The statutory regime
Section 38 empowers the Youth Court, on the application of the Minister, to make an order amongst others placing a child under the guardianship of the Minister or another person for a specified period not exceeding 12 months or until the child attains 18 years of age. The Court is empowered to make such an order if the Court is satisfied that:
1.the child is “at risk” and an order should be made;
2.an instrument of guardianship made under section 44B was properly issued, ie a parent with whom the child was residing had been found guilty of a qualifying offence[4] and an order should be made; or
3.the child is already under care and protection under an arrangement made at a family care meeting; significant psychological injury would probably be avoided if, and it would be in the best interests of the child that, those arrangements continue; and an order should be made.
[4] Murder, manslaughter, criminal neglect of a child or vulnerable adult resulting in death or serious harm, intentionally or recklessly causing serious harm, intentionally or recklessly endangering life or creating risk of serious harm (including corresponding offences in other jurisdictions) or attempting to commit such an offence.
Subsection 6(2) provides that a child is at risk if amongst other things:
1.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;
2.the child has been or is being abused or neglected;
3.a person with whom the child resides has abused or neglected another child and there is a reasonable likelihood of that person abusing or neglecting the child in question;
4.the child’s guardians are unable or unwilling to care for and protect the child; or
5.the child’s guardians are unable or unwilling to exercise adequate supervision and control over the child.
Subsection 6(1) defines “abuse or neglect” to mean:
(a)sexual abuse; or
(b)physical or emotional abuse or neglect to the extent that—
(i)the child has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's wellbeing; or
(ii)the child's physical or psychological development is in jeopardy.
Subsection 3(1) provides that the primary object of the Act of keeping children safe from harm must be the paramount consideration in the administration of the Act.
Section 43 provides that, if the Court places a child under the guardianship of the Minister, the Minister is the lawful guardian of the child to the exclusion of the rights of any other person.
Subsection 51(1) provides that, if a child is under the guardianship or custody of the Minister, the Minister may make provision for the care of the child including by placing the child in the care of a guardian, some other member of the child’s family, an approved foster parent or any other suitable person, a home established or licensed under the Family and Community Services Act 1972 (SA) or in any other suitable place.
Sections 37(1), 38, 6(2), 43 and 51 relevantly provide:
37—Application for care and protection order
(1)If the Minister is of the opinion—
(a)     that a child is at risk; and
(b)     that an order under this Division should be made in respect of the child to secure his or her care and protection,
the Minister may apply to the Youth Court for an order under this Division.
…
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;
(iii)the chief executive of a licensed children's residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(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;
(e)     the Court may direct a party to the application to do one or more of the following:
(i)to cease or refrain from residing in the same premises as the child;
(ii)to refrain from coming within a specified distance of the child's residence;
(iii)to refrain from having any contact with the child except in the presence of some other person;
(iv)to refrain from having any contact at all with the child;
…
(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.
…
6—Interpretation
…
(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
(a)     the child has been, or is being, abused or neglected; or
(b)     a person with whom the child resides (whether a guardian of the child or not)—
(i)has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or
(ii)has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or
(c)     the guardians of the child—
(i)are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or
(ii)are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child; or
(iii)are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or
(d)     the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(e)     the child is under 15 years of age and is of no fixed address.
…
43—Effect of guardianship order
If the Court places a child under the guardianship of the Minister or any other person or persons under this Division, the Minister or the other person or persons is, or are, the lawful guardian, or guardians, of the child to the exclusion of the rights of any other person.
…
51—Powers of Minister in relation to children under the Minister's care and protection
(1)Subject to this Act, the Minister may from time to time make provision for the care of a child who is under the guardianship of the Minister or of whom the Minister has custody pursuant to this Act, in any of the following ways:
(a)     by placing the child, or permitting the child to remain, in the care of a guardian of the child or some other member of the child's family;
(b)     by placing the child in the care of an approved foster parent or any other suitable person;
(c)     by placing the child in a home (not being a training centre) established or licensed under the Family and Community Services Act 1972 or in any other suitable place, and by giving such directions as to the care of the child in that home or place as the Minister thinks fit;
(d)     by making arrangements for the education of the child;
(e)     by making arrangements (including admission to hospital) for the medical or dental examination or treatment of the child or for such other professional examination or treatment as may be necessary or desirable;
(f)    by making such other provision for the care of the child as the circumstances of the case may require.
(2)In making provision for the care of a child pursuant to subsection (1), the Minister must, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the child.
(3)The Minister must keep the guardians of the child informed about where the child is placed and how the child is being cared for, unless the Minister is of the opinion that it would not be in the best interests of the child to do so.
(4)An authorised police officer may for the purposes of enforcing any order of the Youth Court, without warrant, remove from any place a child who is under the guardianship of the Minister or of whom the Minister has custody, using such force (including breaking into premises) as is reasonably necessary for that purpose.
Power to make orders 2 and 3

The Minister contends that, having placed D and S in the guardianship of the Minister, the Magistrate had no power under section 38 to make order 3 that D and S live continuously with M during the second month or order 2 that D and S live with M from Wednesday afternoon to Monday morning during the first month.
The Act uses the terms “guardianship”, “custody” and “access” without defining those terms. However, the term “guardian” is defined by subsection 6(1) to mean:
a parent of the child, a person (other than the Minister) who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time;
The Minister contends that these terms are used in a hierarchical sense. The Minister contends that “guardianship” encompasses all rights and duties of a parent, including the right to control custody of and access to a child; “custody” means the more or less continuous day to day care and control of a child; and “access” means short term discontinuous care and control subservient to the dominant custody of a child. The Minister contends that it was inconsistent for the Magistrate to give guardianship to the Minister but then to take away one of the principal elements of guardianship being the custody of the children. The advocate for the children supports the Minister’s contentions.
M and F (the parents) contend that “guardianship” means the non-custodial rights and duties of a parent. They contend that in any event section 38(1)(f)(i) expressly empowered the making of orders 2 and 3 by giving access to M.
The meaning of guardianship
The words “guardianship”, “custody” and “access” are protean and therefore only limited assistance can be gained from their meaning when used in other contexts.
In Wedd v Wedd[5] Mayo J when speaking generally about the meaning of the word “custody” said:
Custody essentially concerns control, and the preservation and care of the child’s person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction, and the like.[6]
[5] [1948] SASR 104
[6] At 107
In Hewer v Bryant[7] Sachs LJ said:
[I]t is essential to note that among the various meanings of the word “custody” there are two in common use in relation to infants which are relevant and need to be carefully distinguished. One is wide – the word being used in practice as almost the equivalent of guardianship: the other is limited and refers to the power physically to control the infant’s movements.
…
In its wider meaning the word “custody” is used as if it were almost the equivalent of “guardianship” in the fullest sense – whether the guardianship is by nature, by nature, testamentary disposition, or by order of a court. (I use the words “fullest sense” because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a “bundle of rights”, or to be more exact, a “bundle of powers”, which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant’s property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, but the personal power physically to control the infant until the years of discretion … It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have.[8]
[7] [1970] 1 QB 357.
[8] At 372 and 373.
In Youngman v Lawson[9] Street CJ (with whom Reynolds and Glass JJA agreed) said of the word “guardianship”:
… guardianship is a relationship which, so long as it subsists, is recognized as conferring rights in the guardian in respect of the custody and upbringing (educational as well as religious) of the child. Those rights may be exercised by the guardian himself or herself actually having physical custody; or they may be exercised by the physical custody being placed with others. Such other placements might be temporary and casual as, for example, allowing a child to stay with friends for a weekend. They may be on a more regular and extended basis as, for example, placing a child in a boarding school. They may be of an even more extended character as, for example, allowing the child to live with grandparents.[10]
[9] [1981] 1 NSWLR 439.
[10] At 445-446.
Section 38(1)(c) and (d) must be construed by reference to their text, context and evident purpose.[11]
[11] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ; Thiess v Collector of Customs [2014] HCA 12, (2014) 250 CLR 664 at [22]-[23] per French CJ, Hayne, Kiefel, Gageler and Keane JJ.
Starting with the text, section 38(1)(c) and (d) empower the Court to place a child under the guardianship of the Minister or another appropriate person. The words “guardianship” and “guardian” are intimately related. The Oxford English Dictionary[12] defines “guardianship” to mean:
The condition or fact of being a guardian; the office or position of guardian.[13]
[12] Oxford English Dictionary, 2^nd ed (1989).
[13] Page 918.
The definition of “guardian” in subsection 6(1) connotes a guardian in the fullest sense which encompasses custody or control over custody of the child or person in question. The word “guardian” is used in section 38(1)(a), (b)(i) and (f)(iii) in the same full sense. In addition, section 38(1)(f)(ii) and (iii) proceed on the basis that a person who is given guardianship by the Court has the care of the child.
Turning to the context of section 38(1)(c) and (d) within section 38, there are four principal alternative powers that the Court is authorised to exercise in an ostensibly ascending order of severity:
·       under paragraph (a) the Court may leave overall responsibility for the child with the parent, guardian or other person who has the care of the child but require that person to enter into an undertaking to act or not act in certain ways and for that purpose to empower the Chief Executive or some other person or authority to supervise;
·     under paragraph (b) the Court may grant custody of the child for not more than 12 months to the Minister or another appropriate person;
·     under paragraphs (c) and (d) the Court may place the child under the guardianship of the Minister or another appropriate person for not more than 12 months or until the child turns 18 respectively.
It is clear that these powers are alternatives in the sense that the Court cannot leave a child under the responsibility of the existing carer at the same time as granting custody of the child to another person or as placing the child under the guardianship of another person. Equally the Court cannot at the same time grant custody of the child to one person and place the child under the guardianship of another person. The Court can however exercise these powers sequentially: for example the Court could grant custody of the child to one person for say six months under paragraph (b) and then require a parent or guardian to enter into a written undertaking under paragraph (a).
The powers conferred by paragraphs (e) and (f) are subsidiary powers to the four principal powers conferred by paragraphs (a) to (d). The reason that subsection 38(1) authorises the Court to exercise “1 or more of the following powers” is twofold. First the Court may exercise the subsidiary powers conferred by paragraphs (e) and (f) as well as one of the principal powers conferred by paragraphs (a) to (d). Secondly the Court may exercise the principal powers sequentially. It is not because the Court is authorised to exercise two or more of the principal powers at the same time.
The fact that “guardianship” has a broad meaning encompassing control over who has custody of the child is reinforced by the contradistinction between custody and guardianship in paragraphs (b) and (c)/(d). It is reinforced by the fact that the power to grant custody is confined to a period of 12 months and it is only the power to place the child under guardianship that can extend until the child attains 18 years of age. It is reinforced by the ascending severity of the orders proceeding from paragraph (a) through paragraphs (b) and (c) to paragraph (d).
The fact that “guardianship” and “custody” are alternatives is reinforced by section 38(1)(f)(ii), (2) and (2a) which refer to “custody or guardianship” as alternatives. This is also reinforced by the fact that the power to make consequential or ancillary orders providing for access to the child conferred by section 38(1)(f)(i) is confined to “access” and does not extend to “custody”. The word “access” is used in that provision to connote short term discontinuous care and control subservient to the dominant custody of a child.
Turning to the context of section 38(1)(c) and (d) within the Act as a whole, the Act frequently and consistently uses the term “guardian” in a broad sense of meaning a person who stands in loco parentis. The Act also consistently uses the composite phrase “custody or guardianship”. Section 43 provides that when a child is placed under the guardianship of the Minister the Minister is the lawful guardian to the exclusion of the rights of any other person. Subsection 51(1) is inconsistent with guardianship having a narrow meaning.
Turning to the evident purpose of section 38(1)(c) and (d), they are apparently intended to empower the Court to give control of the child to the Minister or another appropriate person in a manner inconsistent with the child living continuously or principally with the child’s parents. This is confirmed by subsection 38(2)(a) which precludes the Court giving guardianship of a child to a person who is not a parent of the child unless the Court is satisfied that there is no parent able, willing and available to provide adequate care and protection for the child. It is also confirmed by subsection 38(2a) which provides that as a general rule a long term guardianship order is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
The text, context and evident purpose of section 38(1)(c) and (d) all point to “guardianship” encompassing all rights and duties of a parent, including the right to control custody of and access to a child.
The consequential and ancillary powers
The parents contend that orders 2 and 3 were within the consequential or ancillary power conferred by section 38(1)(f)(i) to make orders providing for access to the child.
Section 38(1)(f) empowers the Court to 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.
The text, context and evident purpose of section 38(1)(f)(i) all point to “access” being used in the limited sense of referring to short term discontinuous care and control subservient to the dominant custody of a child.
The term “access” is the same term as was originally used in subsection 64(3) of the Family Law Act 1975 (Cth) which used the term in contradistinction to “custody” which was the dominant concept. The context of section 38(1)(f)(i) is that it is only a consequential or ancillary power to be exercised when another person has custody or guardianship of the child and cannot be inconsistent with the custody or guardianship. The evident purpose of section 38(1)(f) is to deal with subsidiary matters such as limited access to the child in circumstances in which the Court has made orders addressing custody or guardianship of the child.
Power to make orders 2 and 3
Order 3 provides for the children to live continuously with M. This gives custody of the children to M. This order was inconsistent with order 1 placing the children under the guardianship of the Minister. This order was not empowered by section 38(1)(f)(i) because it did not grant access to M but rather custody.
Order 2 provides for the children to live principally with M. It only permits the children to live other than with M from Monday afternoon after school until Wednesday morning before school being two nights out of seven. This order also gives custody of the children to M. This order was inconsistent with order 1 placing the children under the guardianship of the Minister. This order was not empowered by section 38(1)(f)(i) because it did not grant access to M but rather custody.
It may be accepted that the dividing line between custody and access is not a purely quantitative one. The difference between custody and access is both qualitative and quantitative. In some circumstances a child spending five consecutive nights with a parent may comprise access. However, in the present case there is no doubt that the orders granted custody to M. Over the two month period the subject of orders 1, 2 and 3, the children were only to spend eight nights away from M divided into two nights per week over the first month. This unequivocally comprises custody rather than access.
Orders 2 and 3 were beyond the power conferred by section 38 on the Court.
Orders 2 and 3 are inconsistent with factual basis for order 1
Given my conclusion on grounds 1 and 2, it is not strictly necessary to decide ground 3. However, as it was fully argued and involves an important question as to the construction of the Act, I decide ground 3 on the assumption that the Minister did not establish grounds 1 and 2.
The Minister contends that, having been satisfied that there is a significant risk that D and S will suffer serious harm to their wellbeing against which they should have but do not have proper protection and that M and F are unable or unwilling to care for and protect D and S or to exercise adequate supervision and control over them as the grounds for making an order under section 38, giving M immediate unsupervised access for five nights a week during the first month and seven nights a week during the second month was inconsistent with that satisfaction.
The parents contend that section 38 confers a discretion on the Court whether or not to make an order. Subsection 38(a1) provides expressly that the mere fact that the grounds of the application (relevantly that the child is at risk) have been made out (the first limb) does not entail that an order is to be made: the Court must still be satisfied that an order should be made under section 38(a1)(b) (the second limb). Consideration of the second limb will include the parent’s capacity to address the child protection concerns and obtain the ability to protect and care for the child within a period commensurate with the child’s development. The Court has flexibility in moulding an appropriate order.
The Minister relied on three grounds to establish that D and S were at risk and the Magistrate found that each ground had been satisfied. The second ground was that the children have been or are being abused and neglected: this ground was capable of being established, and was in fact established, in respect of the past rather than the present and can be put aside. By contrast, the first and third grounds were required by the Act to be established in the present, namely:
· 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
· the guardians of the child—
(i)are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or
(ii)are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child;
In addition, the Magistrate was precluded by subsection 38(2) from making a guardianship order without first being satisfied that:
there is no parent able, willing and available to provide adequate care and protection for the child;
The Magistrate was necessarily satisfied that at the time of making the order there was a significant risk that D and S would suffer serious harm against which they did not have proper protection; the parents were unable or unwilling to care for and protect them; and that no parent was able, willing and available to provide adequate care and protection for them. The Magistrate was necessarily satisfied that it was necessary to make an order that D and S be under the guardianship of the Minister. It was basally inconsistent with that satisfaction and with the Magistrate’s findings to place the children immediately into the custody of M for five nights per week during the first month and continuously during the second month.
This conclusion does not entail that there could not be a transition whereby a child is placed in the guardianship or custody of the Minister and access by one or both parents is gradually increased over a period of 12 months. The Court has power to make such an order in an appropriate case. Indeed section 38 contemplates that, where an order is to be made granting guardianship or custody to the Minister, it will either be for a relatively short term of up to 12 months with a view to transitioning to a parent or guardian taking over custody of the child at the end of that period or it will be for the long term until the child turns 18. However, in the present case there was no transition involving access but the granting of immediate custody to M.
Orders 2 and 3 made by the Magistrate were inconsistent with the Magistrate’s satisfaction that the grounds of the application were made out and that an order should be made under section 38 placing the children under the guardianship of the Minister.
Miscarriage of exercise of discretion
Ground 4 is that the Magistrate erred by failing to take into account the mandatory considerations of keeping the children safe from harm, the children’s need for care and protection including emotional security and the children’s age and developmental needs and emotional attachments; by rejecting the expert opinion evidence of Ms Stewart-Davis in the absence of any evidence or other basis on which to do so; and by not drawing an inference from the failure of M to call Mr Guarna, her psychologist, that his evidence would not have assisted her case.
Given my conclusion on grounds 1, 2 and 3, it is not necessary to decide ground 4. Given that the matter is to be remitted to the Youth Court, it is undesirable to determine ground 4.
Conclusion
Grounds 1, 2 and 3 have been established. I will set aside the orders by the Magistrate and remit the matter to another judicial officer of the Youth Court to hear and determine the application on fresh evidence.
I will hear the parties as to the precise orders to be made.