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 was to be permitted supervised access to the children at a venue other than the mother’s home on a once per week basis.
The Minister’s appeal seeks to set aside these orders, and seeks an order in lieu thereof placing the children under the guardianship of the Minister through to the age 18. The Minister seeks a stay of the Magistrate’s orders pending appeal, on the basis of concerns as to the risk of emotional and psychological harm to the children in the absence of a stay.
Counsel for the children supports the position of the Minister, and hence the ordering of a stay.
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.
Having formed the view that the mother was capable of addressing her “parenting issues”, the Magistrate made the orders I have summarised earlier. He did so on 26 July 2017, with the month of approximately four days of access per week by the mother to commence immediately, and with the month of continuous access by the mother to commence from 26 August 2017. Under the Magistrate’s orders, the guardianship of the Minister was to cease, and the children were to be returned to the full-time care of their mother, on 26 September 2017.
The Minister filed an appeal on 16 August 2017, and the application for a stay on 21 August 2017. The matter first came on for hearing on Friday, 25 August 2017. By this time, the month of four days per week access by the mother was almost complete. On that occasion, I ordered an interim stay of the Magistrate’s orders, other than the order placing the children under the guardianship of the Minister, pending hearing and determination of the stay application. The effect of my orders was to return the children to the kinship carer, with the mother having only the limited supervised access contemplated by the care plan that had been in place during the period between the initial intervention in September 2016 and the Magistrate’s decision in July 2017.
I heard argument on the stay application on Tuesday, 29 August 2017 and reserved my decision.
The appeal is due to be heard in October. During the course of the stay hearing, I explored the possibility of an expedited hearing of the appeal ahead of the expiration of the two month guardianship ordered by the Magistrate, but for reasons which I do not need to explain, that was not possible.
Principles governing the stay application
There is no dispute between the parties that in considering whether to order a stay pending appeal the issue is whether the justice of the case requires that a stay be ordered, and that this requires that the applicant for the stay establish that the appeal raises a serious issue for determination; that there is a real risk that the applicant will suffer prejudice or damage of some significance if a stay is refused; and that the balance of convenience otherwise favours the granting of a stay. This last consideration involves a weighing of the parties’ competing prejudice in the event that a stay is granted or refused.[1]
[1] Ian Rodda Pty Ltd v Rodda [2015] SASC 149 at [5]; Lesses v Maras (No 2) [2016] SASC 140 at [4]-[6].
Merits of the proposed appeal
The Minister’s notice of appeal identifies four grounds of appeal. But broadly speaking, there are two limbs to the Minister’s challenge to the Magistrate’s decision.
The first limb of the Minister’s appeal involves a challenge (in grounds 1 and 2) to the Magistrate’s jurisdiction or power to make an order placing the children under the guardianship of the Minister, while at the same time ordering that the mother have access to, and then the full-time care of, the children. It is said that such a regime is not permitted by the legislation, and inconsistent with the notion of guardianship.
The Minister’s contention is that as a matter of principle and statutory construction, it is inherent in the concept of guardianship that matters such as the placement of the children be left to the guardian. I was taken to a handful of decisions of the Youth Court that reflect this view, and are said to represent the practice of that Court.
Counsel for the mother, on the other hand, contends that the power to make consequential or ancillary orders under s 38(1)(f) of the Act provides a proper basis for the orders made by the Magistrate.
The second limb of the Minister’s appeal involves a challenge (in grounds 3 and 4) to the Magistrate’s exercise of his discretion to make the orders made. The essence of this challenge is a focus upon the Magistrate’s findings that the children had been or were being abused or neglected, that there was a significant risk to the wellbeing of the children, and that the parents were unwilling or unable to adequately care for, protect, supervise and control the children. The Minister contends that in light of those findings, the Magistrate erred in ordering a form of guardianship that permitted the mother a significant level of access, and then continuous access, and was confined to a period of two months. While acknowledging the discretionary nature of the Magistrate’s decision, the Minister contends that the Magistrate erred in imposing a regime that was inconsistent with, or at least did not have due regard to, his earlier findings that grounds 1, 2 and 3 had been established; that focused impermissibly upon the rights and wishes of the parents; and that did not give proper weight to the evidence of the psychologist and the best interests of the children.
The mother’s response to this challenge is a contention that the Magistrate was entitled to make the findings and reach the conclusions that he did. In particular, he was entitled to focus, as he did, upon how the mother had progressed since the intervention of the Department, and to make his own assessment of her progress in understanding and overcoming the deficits in her parenting.
While the argument on the stay hearing inevitably involved some ventilation of the merits of the appeal, the primary relevance of those submissions was to advance the parties’ respective submissions as to the risks faced by the children depending upon whether a stay was granted or refused. This is a matter considered in the next section of my reasons. So far as the merits of the appeal are concerned, I do not understand the mother to go as far as to contend that the appeal does not raise serious issues to be tried sufficient to enliven this court’s discretion to order a stay.
I do not consider it appropriate or possible for me to say much about the merits of the appeal. It is sufficient to note that I am persuaded that the appeal has at least arguable merit. It raises serious issues for determination by the appeal court.
Prejudice and balance of convenience
In the context of the present application, I consider that the focus of the inquiry in relation to the issue of prejudice and the balance of convenience must focus upon the wellbeing and best interests of the children, and their safety from harm. This is a function of the nature of the proceedings, and the fact that they involve an appeal from an application under the Act. Under s 3 of the Act, its object is to keep children safe from harm, with this described as the paramount consideration in the administration of the Act. And under s 8(1) of the Act, the Minister must seek to further the objects of the Act. While the personal rights and interests of the parents are a relevant consideration upon this application, they are less significant than the wellbeing and interests of the children.
Further, I accept the Minister’s submission that in focusing upon the wellbeing and best interests of the children, and their safety from harm, this includes consideration of not only physical but also emotional and psychological harm, and not only proven or likely harm, but also the risk of harm.
That said, there is no significant dispute between the parties as to the relevant considerations. The difference between the parties lies more in where the risks to, and best interests of, the children lie, and hence the outcome of the assessment of relevant prejudice and the balance of convenience.
The Minister emphasises the evidence and findings of the Magistrate as to the history of dysfunction, and his acceptance of grounds 1, 2 and 3 (extracted earlier). The latter includes acceptance that the children were being abused and neglected and were at a significant risk of harm, and that the parents were unable or unwilling to care for, protect, supervise and control the children. While accepting that the Magistrate took a different view of the future parenting ability of the mother, the Minister intends to challenge the Magistrate’s rejection of the Department’s evidence on this issue in its appeal.
Further, and significantly, the Minister relies for the purposes of the stay application upon affidavit material from Departmental officers in relation to additional concerns that have emerged during the month that the mother has, pursuant to the Magistrate’s orders, had four days per week access. Two of the social workers who have had contact with the children during this period report concerns, based upon both their own observations and matters reported to them by the children’s school, of deteriorations in the behaviour and wellbeing of both I and D. Both expressed the view, in their capacities as social workers, that the children were being placed at unnecessary risk to their emotional and psychological wellbeing by being returned to the mother’s care, and that this was not in their best interests.
Counsel for the children adopted and supported the submissions put on behalf of the Minister on the stay application. That said, she acknowledged that she had not sought the views of the children in relation to the issues on the stay, and so was reliant upon the views and expertise of the Departmental officers who had had recent dealings with the children.
The mother, on the other hand, contended through her counsel that it was in the best interests of the children that the Magistrate’s orders be left to take effect. In her affidavit she challenged a number of the assertions made, and views expressed, in support of the suggested deterioration in the children’s behaviour and wellbeing. She suggested that the Departmental officers were still being unduly influenced by what the Magistrate held was entrenched views on their part. She contended that to the extent that the children were exhibiting signs of being unsettled, this was entirely to be expected given that they were in a transition period under the Magistrate’s orders. She contended that the best interests of the children lay in continuing the regime contemplated by the Magistrate’s orders, with the children now to move to full-time care by the mother. The mother further contended that to order a stay with the effect of ceasing the resumption of significant access by the mother, and reverting to fulltime care by the kinship carer (with only limited supervised access by the mother), would be contrary to the bests interests of the children.
In support of her position, the mother also contended that the Department’s views were largely based upon the historical deficits in her parenting (which she now acknowledges existed), and as the Magistrate pointed out, do not take account of the progress the mother has made in addressing her parenting deficits. Her affidavit deposes to her continued efforts in this regard. It also deposes to her having removed the father and older brother from the home, such that they are no longer a source of risk to the children.
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].
I consider it appropriate to make an order extending the Minister’s guardianship until further order.
Orders
For these reasons I propose to make orders in the following terms:
1.   The first to fourth respondents’ identities are suppressed, and each is to be referred to by suitable pseudonyms in any published rulings or judgments.
2.   Paragraphs 2 to 7 of the orders made by the Magistrate on 26 July 2017 in relation to the children, I and D, are stayed until further order.
3.   The children, I and D, are to remain under the guardianship of the Minister until further order of this Court.