RS v Chief Executive of the Department for Child Protection - [2022] SASCA 58

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
RS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 58
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
16 June 2022
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
From 2015 to 2020, the respondent received 21 notifications regarding the appellant’s four children, including concerns related to the mother’s alcohol and illicit substance abuse, alleged domestic violence perpetrated by the appellant and the failure of children to attend school.
The respondent sought Care and Protection Orders in the Youth Court of South Australia in May 2021, and on 10 December 2021 a judge of the Youth Court ordered that the four children be placed under the guardianship of the Chief Executive of the Department for Child Protection until they attain the age of 18.
The appellant now appeals against the Guardianship Order complaining that the judge failed to properly consider all the evidence, failed to accord procedural fairness and natural justice, made a decision founded on the “principle of right conduct”, wrongly admitted evidence and erred in fact.
Held (the Court) dismissing the appeal:
1. The appellant has failed to demonstrate any appealable error of fact or law.
2. No relevant error in the judge’s exercise of discretion has been established.
3. Contrary to the case of the appellant, and regardless where fault for the harm and risk of harm found by the judge lay, making no order at all was not a realistic option.
Children and Young People (Safety) Act 2017 (SA) ss 7, 8, 10, 11, 17, 18, 50, 53(1)(g), 55, 57, 58, 62; Children's Protection Act 1993 (SA) s 45; Criminal Law Consolidation Act 1935 (SA) ss 20, 20A; Youth Court Act 1993 (SA) s 22, referred to.
Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8; House v The King (1936) 55 CLR 499; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; KM v Chief Executive of the Department for Child Protection [2021] SASC 9; L, G v Minister for Families and Communities (2012) 113 SASR 152; Lee v Lee (2019) 266 CLR 129; Legal Profession Conduct Commissioner v Fowler (2020) 136 SASR 252; M v M (1988) 166 CLR 69, 76; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; M, L v Minister for Education and Child Development [2018] SASCFC 131; Schinckel v Registrar of Firearms [2020] SASC 236, considered.

RS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 58
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA
THE COURT (ex tempore):
Introduction

By a Notice of Appeal filed 21 December 2021, the appellant father appeals against a Care and Protection Order made by the Youth Court of South Australia on 10 December 2021 whereby the appellant’s four children, LS, KS, ES and JS, were placed under the guardianship of the Chief Executive of the Department for Child Protection (the Chief Executive) until they attain 18 years of age pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (the Act).
The Chief Executive initially filed an application on 28 May 2021 pursuant to ss 50 and 53(1)(g) of the Act and, on the first hearing of the application on 3 June 2021, interim Guardianship Orders were made. At the time of the application the children were aged between 15 and 2 years of age: LS was 15 years, KS 11 years and ES and JS were both 2 years.
The mother of the children consented to the Guardianship Order on 30 June 2021 and did not participate in the proceedings. At the time of the hearing, the day-to-day care of the children was provided by their maternal grandparents who were described as “providing exceptional care to the children”.[1]
[1] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [17] (Judge Eldridge).
The appellant father has always opposed the application, contending that no order should be made. He was incarcerated until he was granted bail on 8 December 2021. He is still subject to an intervention order preventing contact with his children and their mother. The appellant is adamant that the lack of contact between he and his children is detrimental to them.
For the reasons that follow, no error has been demonstrated in the decision of the Youth Court and the appeal should be dismissed.
The case for the Chief Executive at trial
The case of the Chief Executive was that the children were at risk and the order sought was necessary to protect them from harm. The mother of the children was labouring under alcohol and drug abuse difficulties.
The appellant father was subject to allegations of domestic violence and, at the time of the hearing, he had been incarcerated since 17 May 2020, on remand for alleged offending on 10 May 2021 of choke, suffocate or strangle the mother in a domestic setting, contrary to s 20A, and aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1953 (SA). It is alleged that this offending was witnessed by the children. The appellant has pleaded not guilty to these charges and the trial is set down for hearing next week. There were also allegations that he had exercised excessive disciplinary conduct toward two of the children. The appellant denies these matters.
The appellant has only admitted that he had smacked both LS and KS on the “rare, odd occasion” and that there were “horrible, toxic verbal arguments” between he and the mother which were overheard by the children. He attributes the difficulties encountered by the children to the sub-standard care the mother provided whilst he was at work or incarcerated.
The appeal to the Court of Appeal
The appellant’s appeal is pursued as of right pursuant to s 22(1) of the Youth Court Act 1993 (SA). The appeal is by way of re-hearing.[2]
[2] M, L v Minister for Education and Child Development [2018] SASCFC 131, [25] (Kourakis CJ, Stanley and Lovell JJ).
This Court is bound to conduct a real review of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge erred in fact or law.[3] Whilst this Court must exercise appellant restraint concerning the trial judge’s factual findings, given the advantages enjoyed by the trial judge, the appellate court is otherwise in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.[4]
[3] Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
[4] Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
It must be borne in mind that the decision to make an order pursuant to s 53 of the Act involved the exercise of a discretion. Quite apart from whether the Youth Court made any error of fact or law, the exercise of discretion can only be vitiated where it is demonstrated that the trial judge took into account an irrelevant factor, or ignored a relevant factor, or proceeded on a wrong principle, or misunderstood the facts, or arrived at an unreasonable or plainly unjust result.[5]
[5] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
The grounds of appeal
The appellant’s grounds of appeal are as follows:
Her Honour Judge Eldridge failed to properly consider all the evidence.
Her Honour Judge Eldridge failed to accord procedural fairness.
Her Honour Judge Eldridge made a decision to that in accordance was founded on the fundamental principle of right conduct [sic].
Her Honour Judge Eldridge failed to accord the requirement of natural justice.
Hersay [sic] and untested evidence was submitted and accepted that potential [sic] influence and misled the proceedings.
Her Honour Judge Eldridge presented incorrect facts in her judgment on 10 December 2021.
The legislative scheme
Sections 7 to 10 of the Act identify the priorities to be applied in the operation of the Act and the principles of intervention. The paramount consideration is to ensure that children and young people are protected from harm, s 7. The needs of the children to be considered include the need for the views of the children to be heard and considered, s 8(1)(a), their need for love and attachment, s 8(1)(b), their need for self-esteem, s 8(1)(c), and their need to achieve their full potential, s 8(1)(d).
The Act recognises the desirability for children and young people to maintain connection with their biological family, s 8(3).
Section 10 addresses the principles of intervention, whereas s 11 addresses the principles of placement, requiring that children removed from the care of a person should be placed in a safe, nurturing, stable and secure environment. Sections 17 and 18 address the meaning of “harm” as well as the meaning of “at risk”. Harm may be physical or psychological.[6] By s 18(3), when assessing whether there is a likelihood that a child or young person will suffer harm, regard must be had to not only the current circumstances of the child’s care but also the history of care and the likely cumulative effect on the child or a young person of that history.
[6] Children and Young People (Safety) Act 2017 (SA) s 17.
Whilst there is no longer a requirement to find that there is a risk of harm, as there was under the Children’s Protection Act 1993 (SA) (now repealed), that remains a relevant consideration, see s 50(3) of the Act.
By s 58 of the Act, a fact is proved where it is proved on the balance of probabilities. However, by s 57, the Youth Court is not bound by the rules of evidence but may inform itself as it thinks fit, and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The Full Court has previously considered the operation of s 45 of the Children’s Protection Act 1993 (SA) (now repealed) which is in identical terms to s 57 of the Act.[7]
[7] L, G v Minister for Families and Communities (2012) 113 SASR 152, [19] (Peek J, with whom Vanstone and Stanley JJ agreed).
Importantly, by s 62 of the Act, a child or young person to whom the proceedings relate must be given a reasonable opportunity to present their views to the Court relating to their ongoing care and protection. The trial judge had regard to the views of LS and KS and it will be necessary to return to the views they expressed.
The findings made at trial
Between 2015 and 2020, the Department for Child Protection (the Department) received 21 notifications concerning the children, 13 were concerned with the mother engaging in alcohol and illicit substance abuse. Other notifications concerned the appellant perpetrating domestic violence against the mother and using excessive physical discipline towards LS and KS. There were also concerns about persistent absenteeism from school by LS and KS, as well as LS exhibiting symptoms of emotional distress.
One of the notifications concerned LS experiencing suicidal ideation and displaying behaviours that may have resulted in harm to himself and others. It was reported that the parents were dismissive of concerns about the emotional wellbeing of LS. Another notification suggested that the appellant was presenting as aggressive and controlling and appeared to be isolating the mother from engaging with various services.
Another notification during 2020 resulted in the Department’s intervention. The mother was caring for the children in the family home whilst intoxicated. The appellant was incarcerated. The mother was observed to be falling over whilst JS and ES, 18 months at the time, were in her care with no other adult supervision. The mother was transported by ambulance to hospital and a blood alcohol test returned a reading of 0.287. The maternal grandparents, residing at Cowell, were requested to travel to Whyalla to care for the children.
The trial judge found that the children presented with complex health and developmental needs, requiring a significant level of support and highly attuned care.[8]
[8] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [13] (Judge Eldridge).
In 2015 LS was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. Despite approval for a National Disability Insurance Scheme (NDIS) Plan during 2016, this was not implemented. LS did not attend school for significant periods during 2019 and 2020. However, since he has been in the care of his maternal grandparents his school attendances have significantly improved. During October 2020, he commenced receiving services through NDIS, including occupational therapy, physiotherapy and Centacare counselling for emotional regulation. The maternal grandparents were continuing to engage with NDIS, and those services were continuing at the time of trial.
KS was often kept at home from school by her mother so that she could care for her siblings. She was the victim of violence perpetrated by the appellant and she witnessed violence being perpetrated by him on LS. The Department’s witness, Ms K, whose evidence was accepted by the trial judge,[9] told the Court that KS was “quite parentified and felt responsible for her siblings”.[10] She had previously engaged in self-harming behaviour.
[9] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [36] (Judge Eldridge).
[10] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [14] (Judge Eldridge).
Prior to the involvement of the Department, ES and JS were frequently confined to their cots and did not attend childcare or socialise with other children. They had not had their health and development assessed. An assessment in July 2020 found them to be delayed in all developmental parameters. ES has since October 2020 received both occupational therapy and speech therapy.
JS was assessed by a paediatrician in September 2020 and diagnosed with global developmental delay, particularly in the area of gross motor skills and expressive language. He was assessed as displaying features of Autism Spectrum Disorder but no diagnosis has been made. By August 2021, steps were being taken to obtain early intervention NDIS plans.
The maternal grandparents were aged 68 and 71 years, respectively, at the time of trial and the Department is mindful that the youngest children are not yet 3 years. A plan was developed to involve the maternal aunt of the children should the maternal grandparents be unable to continue with care. The maternal aunt has had considerable contact because she supports the maternal grandparents to care for the children.
The Department assisted the maternal grandparents with obtaining a property through Housing SA because the home of the parents is subject to a mortgage on which the payments are in arrears. Though the maternal grandparents resided in that home with the children, there is a risk of eviction.
The Department did not consider that the appellant had the capacity to meet the children’s high care needs and the evidence of Ms K was that the children would be at risk of harm if returned to his care. Long-term orders were necessary to ensure the safety and ongoing care of the children.
The appellant gave evidence. Whilst the trial judge acknowledged that he clearly loved his children, she did not regard the appellant as a reliable or credible witness. She gave examples of inconsistencies in his evidence.[11] The trial judge appears to have been concerned that the appellant regarded the implementation of the NDIS Plan for LS as being the responsibility of the mother. He took no responsibility for the poor school attendance of his children because he said he was working five days, although later evidence suggested he was working only three days each week.
[11] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [37] (Judge Eldridge).
The appellant largely denied the existence of any child protection concerns. In particular, he denied the existence of physical violence in his relationship with the mother despite notifications to that effect and the disclosures made by his children, LS and KS. It will be necessary to return that evidence.
The trial judge found that, for most of the evidence of the appellant, he was unwilling to accept any responsibility. He demonstrated little or no insight into the child protection concerns and he displayed little empathy for the experience of his children whilst in his care.
The trial judge rejected the evidence of the appellant where it conflicted with the evidence of Ms K.
In an interview with the child representative in June 2021, KS said that the appellant hit her and LS. Both children previously made disclosures of the appellant being physically violent towards them. For example, in October 2015, LS was found to have a bruise on his cheek the size of a 20-cent coin and he said that this had been caused by his father.
The trial judge found that there was significant evidence before the Court in the form of notifications and disclosures by both LS and KS of the existence of domestic violence in the relationship between the appellant and the mother.
LS told the child representative that it was “pretty good” living with the maternal grandparents and he felt “safe and happy”. KS said that she “had never been happier than with Nan and Pop” and she was very grateful that they had given up their life in Cowell to look after them. The child representative generally supported the Chief Executive’s application.
The judge found that the children, particularly LS and KS, had suffered cumulative harm as a result of being in the care of their parents.
The judge considered the views of the children pursuant to s 8(1)(a), as well as their views regarding their care having regard to their developmental capacity, pursuant to s 10(1)(c) of the Act. The judge accepted that the elder children had expressed strong wishes to remain in their current placement.
According to the trial judge:[12]
In my view, the priorities and principles of intervention set out in the Safety Act are best achieved by the making of the long-term order sought by the Chief Executive, as such an order will keep the children safe from harm and provide them with the necessary safety, stability and permanency in their lives.
I am also satisfied that the Department has assessed the likelihood of reunification occurring with the parents in accordance with s 50(4) of the Safety Act and has assessed that reunification is not viable with either parent due to the significant child protection concerns remaining unaddressed and the fact that [the appellant] remains incarcerated.
[12] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [61]-[62] (Judge Eldridge).
The trial judge concluded:[13]
In my view, the evidence before the Court clearly establishes the children would be ‘at risk’ within the meaning of s 18 of the Safety Act, namely they have suffered harm whilst in the care of the parents (s 18(1)(a)), [the appellant] is presently incarcerated and is unable to care for them and [the mother] is also presently unable to care them due to her abuse of alcohol (s 18(1)(d)) and they are likely to suffer further harm if returned to the care of either parent (s 18(1)(b)).
[13] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [54] (Judge Eldridge).

The trial judge found that it was appropriate that the long-term order be made with respect to the children.
The trial judge concluded her reasons by noting that she had no jurisdiction with respect to contact arrangements, but she encouraged the Department to meet with the appellant to discuss future contact arrangements given that he had had no contact with his children since arrest in May 2020. She noted that LS missed the appellant and was “worried sick about him”.[14] Today, we were taken to concessions made by Ms K in evidence to the effect that steps would need to be taken to assist the “repair” of the relationship between the appellant and his children. On any view, that will take some time.
The appellant’s contentions on appeal
[14] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [65] (Judge Eldridge).
Appeal Ground 1
The appellant contends that the trial judge failed to have regard to the inquiry conducted by former District Court Judge Paul Rice (the Rice Review). He also contends that she failed to consider that the appellant was the sole financial provider for his family since the birth of the children, and that he wished to continue doing so. The appellant maintains that the trial judge had little information about his history as a parent and his parenting capacity with the result that she failed to properly consider all of the evidence.
Whilst the trial judge acknowledged that the appellant made submissions about the Rice Review, it is unclear how that bore on the issues before the Court. Similarly, although the appellant undoubtedly provided for his children, that was not in issue before the Court. Insofar as these are complaints about the weight given to these matters, these do not demonstrate any error of fact or law, still less an error made in the exercise of discretion.[15]
[15] Legal Profession Conduct Commissioner v Fowler (2020) 136 SASR 252, [62], [72] (Kourakis CJ, with whom Parker and Bleby JJ agreed); Schinckel v Registrar of Firearms [2020] SASC 236, [20] (Bleby J).
The appellant was given the opportunity to lead evidence, including his own oral evidence, about his parenting. If there was further evidence he wished the Court to consider, that was a matter for him. These contentions do not suggest that the trial judge erred.
Appeal Grounds 2 and 4
The appellant makes a general complaint about a denial of procedural fairness and natural justice. He appears particularly aggrieved about the extent to which he could not access documents or obtain evidence on subpoena.
It is not in issue that the Court was obliged to afford procedural fairness.[16] However, not all departures from the obligation to afford procedural fairness will require a new trial.[17] Insofar as the appellant had difficulties accessing documents because of problems encountered with the Department for Correctional Services, he was given access to spare copies of the trial materials and he was afforded the opportunity to cross examine on a separate day when he had access to his notes. However, the appellant made no application for an adjournment after his materials and notes were available to him.
[16] InternationalFinance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, [54] (French CJ), [141] (Heydon J); L, G v Minister for Families and Communities (2012) 113 SASR 152, [28] (Peek J, with whom Vanstone and Stanley JJ agreed).
[17] KM v Chief Executive of the Department for Child Protection [2021] SASC 9, 46 (Lovell J); see also M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27.
The documents the appellant wished to subpoena included publicly available documents which the trial judge explained could be referred to without the necessity for a subpoena. The appellant wished to subpoena the Chief Executive to give evidence about the average cost of keeping a child in State care. In addition, he wished to subpoena LS’s principal for the purposes of putting to that witness a breach of the school’s duty of care. From the submissions made today, one of the issues may have been the cause of the bruising to LS in 2015. As counsel for the Chief Executive said today, however, the appropriate application was not formally made by the appellant. As the issue remained relatively peripheral, it cannot be said that the judge erred in the approach she took to this or the other subpoena application.
Insofar as the appellant complains about findings made on the basis of alleged criminal misconduct, it is clear that the trial judge paid careful regard to what the children had revealed, and the notifications made, but that she otherwise simply noted that the appellant had been charged and was remanded in custody on criminal charges concerning the mother. She made no direct findings as to whether the appellant had committed the charged offences which he denied. No finding was made that the appellant had any antecedent criminal history.
Nonetheless, the trial judge was clearly concerned about the risk of harm to the children and, in so finding, it cannot be said that she erred in circumstances where the Court was required to determine what was in the best interests of the children.[18]
[18] M v M (1988) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
Appeal Ground 3
The appellant has made a very general complaint about a breach of what is said to be the fundamental principle of “right conduct”. It is difficult to know precisely what the appellant means by this. Insofar as the appellant points to the failure of the trial judge to speak directly with the children, it cannot be said that she erred in not doing so and in relying upon what was said to the child representative.
Similarly, insofar as the trial judge found that the appellant deflected much of the blame to the mother as a consequence of her alcohol and drug abuse, the trial judge was on the evidence entitled to point out, as she did, that the appellant must take responsibility for the chaotic and neglectful home.[19]
[19] Chief Executive of the Department for Chid Protection and the children LS, KS, ES and JS, and the father, RS [2021] SAYC 8, [47] (Judge Eldridge).
It cannot be disputed that, before his arrest, the appellant shared parental responsibility for his children, together with their mother. Indeed, his evidence disclosed a number of instances in which he maintained that he performed practical tasks in caring for his children. The reasons of the Youth Court about these matters have not been shown to be affected by error.
Appeal Ground 5
The appellant makes various complaints about evidence having been wrongly admitted. The appellant does not generally identify precisely what evidence ought not to have been admitted, or why. It is not at all clear that the trial judge made any error in her approach to fact finding or the admission of evidence before her.
Insofar as the appellant complains that his ability to care for his children had not been formally assessed, his further complaint that this contradicts the significant body of evidence indicating that he does not have the requisite capacity to care for the children is not supported. The judge’s reasoning for rejecting the appellant’s evidence, and in making the finding that he was not in a position to care for his children, is clear and the judge was entitled to have regard to the extent to which the social, emotional and developmental needs of the children had not been met by their parents when the children were in their care.
More importantly, the absence of a formal parenting capacity assessment did not deprive the Court of the ability, nor relieve it from the duty, of determining the Department’s application and making findings about the capacity of the appellant to provide care for his children. The Court’s findings about these matters have not been shown to be affected by error.
Appeal Ground 6
The appellant points to an apparent error in fact finding concerning the date when the mother was admitted to the Whyalla Hospital emergency department for treatment for alcohol detoxification and management of alcohol withdrawal. The error concerns the recitation of the appellant’s written submission. However, it is not clear that the written submission is accurate.
The written submission referred to admission between 14 February and 6 April 2020, whereas the finding referred to the period 6 April to 17 May 2020. In fact, the Country Health SA notes record admission between 14 and 28 February 2020. Whatever the correct position, the appellant says that if the period 6 April to 17 May 2020 is correct, the alleged offending on 10 May 2020 could not have occurred. Otherwise, the context is one where, more generally, the mother’s capacity to care for her children was clearly compromised by alcohol and substance abuse.
The findings made by the trial judge to the effect that the appellant was not a credible witness and lacked empathy for his children, was sceptical of the NDIS Plan concerning LS, and there were likely problems associated with reunification, have not been shown to be in error.
The critical issue, however, was that the children had suffered harm and were at risk of harm and some order was required, regardless where ultimate responsibility for the difficulties besetting these children lay. They required a stable, long-term arrangement to be implemented. Making no order, as the appellant urged, was not a realistic option.
Conclusion
In these circumstances, the appellant has failed to demonstrate any appealable error of fact or law. He has not demonstrated any relevant error in the exercise of discretion.
It ought not be overlooked that, once the appellant is no longer troubled by his criminal proceedings, there is facility under s 55 of the Act to apply to revoke the order made if there is a significant change in circumstances.[20] That is a matter for the appellant to consider in due course.
[20] M, L v Minister for Education and Child Development [2018] SASCFC 131, [23] (Kourakis CJ, Stanley and Lovell JJ).
The appeal must be dismissed.