Minister for Education and Child Development v NF - [2017] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v NF & ORS
[2017] SASC 135
Judgment of The Honourable Justice Doyle
31 August 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - GENERALLY
The Minister applies for a stay, pending appeal, of a decision of the Youth Court in relation to the guardianship of two children, I and D.
The Magistrate had placed the children under a guardianship order upon finding that the grounds of the Minister's application had been made out. This included a finding that the children were at significant risk of suffering serious harm (within the meaning of s 6 of the Children's Protection Act 1993) under the care of their mother and father. However, the Magistrate had also placed conditions upon the guardianship order in terms of a continuous access order, which had the effect of placing the children with their mother, first on a part time, and subsequently, on a full time basis.
The Minister's appeal challenges the Magistrate's decision on several grounds. The Minister seeks interim orders to stay the Magistrate's access order.
The stay is opposed by the Mother; her position is supported by the Father. Counsel for the children supported the Minister's application.
Held per Doyle J:
1. The orders made by the Magistrate on 26 July 2017 in relation to the children, I and D, are stayed until further order.
2. The children, I and D, are to remain under the guardianship of the Minister until further order of this Court.
Children's Protection Act 1993 (SA) ss 3, 8, 16, 38, referred to.
Assuman [2017] SASC 123, applied.
Ian Rodda Pty Ltd v Rodda [2015] SASC 149; Lesses v Maras (No 2) [2016] SASC 140, discussed.

MINISTER FOR EDUCATION AND CHILD DEVELOPMENT v NF & ORS
[2017] SASC 135
V
Civil.

DOYLE J: This is an application for a stay pending appeal from a decision of the Youth Court in relation to the guardianship of two children, I and D.
The effect of the decision was to order that the children be placed under the guardianship of the Minister for a period of two months. The orders made by the Magistrate provided for their mother to have continuous access to the children from Wednesday afternoon to Monday morning each week during the first month of the guardianship, and for the children to live with the mother during the second month of the guardianship. The orders provided for the children to thereafter be returned to the full-time care of the mother, upon her entering into a written undertaking to comply with various conditions in relation to her care of the children, and to do so for a period of 10 months. The orders also contemplated that the children would, during that 10 month period, be under the supervision of the Chief Executive of the Department. The father…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASC 135
Decision Date: 31 August 2017

CaseChat Overview and Summary

In this case, the Minister for Education and Child Development appealed against orders made by a Magistrate under the Children’s Protection Act 1993 (SA). The appeal concerned the decision of the Magistrate not to grant guardianship orders to the Minister in respect of two children, I and D, who had been removed from their parents’ care in September 2016. Instead, the Magistrate ordered that the children be returned to their mother’s care, subject to supervised access for the father and ongoing supervision and support from the Department of Human Services. The Minister opposed these orders, contending that they were not in the best interests of the children. The mother supported the Magistrate’s orders, while the father supported the mother’s position. The case came before the Supreme Court of South Australia, which was required to determine whether to grant a stay of the Magistrate’s orders and, if so, whether to extend the period of the Minister’s guardianship beyond the two months ordered by the Magistrate. The court was also required to determine whether it had the power to extend the period of guardianship under the parens patriae or inherent jurisdiction of the court. The court found that the Minister’s appeal had a real chance of success, and that the balance of convenience favoured the granting of a stay of the Magistrate’s orders. The court noted that there was some basis to believe that there had been a recent deterioration in the children’s behaviour and well-being, and that a continuation of the regime contemplated by the Magistrate’s orders involved a risk of harm to the children. The court also found that the children had bonded with their kinship carer, and that should the appeal ultimately fail, then the Magistrate’s regime could be resumed with minimal delay. The court rejected the contention that it had the power to extend the period of guardianship under the parens patriae or inherent jurisdiction of the court. The court found that the Act did not expressly confer upon the court such a power, and that the court was not in a position to make or extend a guardianship order. The court therefore granted a stay of the Magistrate’s orders, but did not extend the period of the Minister’s guardianship. The court considered that the children would be returned to their mother’s care subject to supervised access for the father and ongoing supervision and support from the Department of Human Services until the hearing and determination of the appeal. The court noted that this would involve no more than a few months delay in achieving what the Magistrate considered was in the children’s best interests. The court also noted that there was no significant risk of harm to the children associated with such a delay.

Orders

Orders of the court

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Background

Background to the litigation

The stay is opposed by the mother, essentially on the basis that the Magistrate’s decision correctly reflected the best interests of the children, and that to order a stay at this point would be to inflict more instability upon the children and hence not be in their best interests. The father supports the position taken by the mother.Background The children, I and D, were born in January 2009 and August 2010, and so are eight and seven years of age respectively. In 2016, the children, together with their older brother and half-sister, were residing with their mother and father. There was a history of over 60 notifications to the Department in relation to child protection concerns within the family. On any view, the family unit was dysfunctional, for various reasons and in various respects. The mother and father were illicit drug users, and their relationship was infected by domestic violence. The father physically abused the older siblings of the children. The family’s life was chaotic and disordered. In September 2016, officers of the Department exercised their powers under s 16 of the Children’s Protection Act 1993 (SA) (the Act) to remove the children from their parents. The children were placed in the care of a kinship carer, with the mother having supervised access for one hour a week. This arrangement remained in place until the Magistrate’s decision. In November 2016, the Minister brought an application under s 38 of the Act, seeking orders under s 38(1)(d) that the children be placed under the guardianship of the Minister until they attain the age of 18. The Minister relied upon the following grounds in support of the application: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, the mother and father, are unable or unwilling to care for and protect the children or are unable to exercise adequate supervision and control over the children. The Minister made 14 factual allegations, or groups of factual allegations, in support of these three grounds. The Magistrate heard evidence from the mother, the father, a psychologist employed by the Department (Ms Stewart-Davis) and a social worker allocated to the care of the children by the Department (Ms Hillyer). In his reasons, the Magistrate found that the evidence established the matters set out in grounds 1, 2 and 3 of the Minister’s application (as extracted above). His Honour supported these findings with a number of more specific findings of fact as to the nature and extent of the dysfunction within the family unit. However, having decided that his discretion to make an order under s 38(1) (including a guardianship order) was therefore enlivened, his Honour ultimately declined to make the guardianship orders sought by the Minister, and instead made the orders summarised at the commencement of these reasons. In concluding that this was the appropriate course, and while apparently accepting the background of dysfunction relied upon by the Minister, the Magistrate did not accept the views of the Department (including Ms Stewart-Davis) as to the ability and suitability of the mother to care for the children in the future. The Magistrate described the Departmental officers as holding entrenched views that did not fairly reflect the mother’s insight into, willingness and ability to address, and recent progress in addressing, the deficits in her parenting ability.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The father supported the mother’s position. He confirmed that he and the mother are no longer in a relationship, and that he considers that she is now able to, and indeed the best person to, care for the children.Consideration In assessing the prejudice and balance of convenience relevant to the exercise of my discretion to stay the Magistrate’s orders, I have had regard to the mother’s contentions. They have some force, not least because they receive a significant measure of support from the Magistrate’s findings and reasoning. On the other hand, I cannot ignore the views of the experts employed by the Department and the fact that the appeal involves a challenge to the Magistrate’s findings and reasoning in relation to these views. It is also significant that there is some basis to believe that there has been a recent deterioration in the children’s behaviour and well-being. I am not in a position to make any clear or detailed findings of fact in this regard, but in my view there is sufficient to satisfy me that there is a risk of harm to the children in a continuation of the regime contemplated by the Magistrate’s orders. While there is a countervailing risk that it will be unsettling for the children to have to revert to care by their kinship carer, without a continuation of the four days per week access by the mother, I consider this to involve less risk to the children than a continuation of the regime contemplated by the Magistrate’s orders. In this respect, it is significant that while the children apparently wish to continue to see their mother, it is clear that they have bonded with their kinship carer. It is also significant that, should the appeal ultimately fail, then the Magistrate’s regime can be resumed. In that event, there should be no more than a few months delay in achieving what the Magistrate considered was in the children’s best interests. I do not consider there to be any significant risk of harm to the children associated with such a delay. For these reasons, I consider it appropriate to order a stay of the Magistrate’s orders. Given that the appeal will not be heard prior to the 26 September 2017 expiration of the two month guardianship ordered by the Magistrate, the Minister contended that I should not only stay the balance of the Magistrate’s orders, but also order that the period of the Minister’s guardianship be extended beyond this two month period until the hearing and determination of the appeal. The Minister acknowledged that the Act does not expressly confer upon this Court power to make (or extend) a guardianship order. However, the Minister contended that such an order might be made under the parens patriae or inherent jurisdiction of the Court.[2] While opposing the ordering of a stay, the mother did not contest my jurisdiction to extend the guardianship order if I were otherwise persuaded that it was appropriate to order a stay and make such an order. [2] Asuman [2017] SASC 123 at [17].