SB, MF v Minister for Education & Child Development - [2016] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Civil)
SB, MF v MINISTER FOR EDUCATION & CHILD DEVELOPMENT
[2016] SASC 116
Judgment of The Honourable Justice Bampton
1 August 2016
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
The maternal grandmother of M appeals against a Variation Order of the Youth Court transferring the administration of the Care and Protection Order pertaining to M to Queensland – at the time the Variation Order was made M was placed with kinship carers in Queensland – the placement has broken down – M’s circumstances have changed – the Department of Communities, Child Safety and Disability Services in Queensland is now unlikely to accept the transfer in view of instability of placement and ongoing costs – the Minister seeks orders allowing the appeal on a limited basis, setting aside the Variation Order, but otherwise dismissing the appeal in order that the administration of the care and protection order remain with the Department for Education and Child Development in South Australia – whether the appeal against the Variation Order is an appeal against an interlocutory order to be heard by a single Judge – whether the appeal involves a matter arising under the Constitution.
HELD:
1. The appeal against the Variation Order is interlocutory in nature within the meaning of s 22(2)(b) of the Youth Court Act 1993 (SA).
2. In view of the change in M’s circumstances since the making of the Variation Order and the lacuna created by the interaction of the Children’s Protection Act 1993 (SA) and the Child Protection Act 1999 (Qld):
2.1. The appellant’s interlocutory applications FDN 2, 9, 12, and 13 are dismissed.
2.2. The appeal is allowed for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015, thereby restoring orders for access made by Judge Prescott on 16 November 2011.
2.3. The remaining grounds of appeal are struck out on the basis that they are incompetent and/or disclose no appealable error for which appellate remedy is available and/or seek relief which this Court cannot give.
Children’s Protection Act 1993 (SA) s 3, s 16, s 38, s 48, s 54F, s 54Q, s 61; Youth Court 1993 (SA) s 22; Judiciary Act 1903 (Cth) s 78B; Child Protection Act 1999 (Qld) s 61, s 222, s 223, s 224, s 225; Corporations Act 2001 (Cth); A New Tax System (Family Assistance) Act 1999 (Cth) s 3, s 22, s 22A; Family Law Act 1975 (Cth); Commonwealth Powers (Family Law) Act 1986 (SA) s 3; Children’s Protection and Young Offenders Act 1979 (SA); Social Security Act 1991 (Cth) s 5; Migration Act 1958 (Cth); Children and Young Persons (Care and Protection) Act 1998 (NSW); Children and Community Services Act 2004 (WA); Children, Young Persons and Their Families Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); Care and Protection of Children Act (NT); Children and Young…

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: [2016] SASC 116
Decision Date: 1 August 2016

CaseChat Overview and Summary

The case of SB, MF v Minister for Education & Child Development concerns an appeal by the maternal grandmother of M against a Variation Order of the Youth Court. This order transferred the administration of a Care and Protection Order pertaining to M to Queensland, where M had been placed with kinship carers. The placement in Queensland has broken down, and the Department of Communities, Child Safety and Disability Services in Queensland is unlikely to accept the transfer due to instability of placement and ongoing costs. The Minister seeks orders allowing the appeal on a limited basis, setting aside the Variation Order but otherwise dismissing the appeal to keep the administration of the care and protection order with the Department for Education and Child Development in South Australia. The central legal issues were whether the appeal against the Variation Order is an appeal against an interlocutory order to be heard by a single Judge and whether the appeal involves a matter arising under the Constitution.

The court determined that the appeal against the Variation Order is an interlocutory order to be heard by a single Judge, and no Constitutional issue arises. The court allowed the appeal on a limited basis to strike out the Variation Order but otherwise dismissed the appeal, ensuring the administration of the care and protection order remains with the Department for Education and Child Development in South Australia. The reasoning behind this decision was that the breakdown of the placement in Queensland and the Queensland Authority's unwillingness to accept the transfer created a legal difficulty or lacuna. Allowing the appeal on a limited basis and setting aside the Variation Order restored the ancillary orders for access to the Order made by Judge Prescott on 16 November 2011. The remaining grounds of the appeal were struck out as incompetent and/or disclosing no appealable error for which appellate remedy is available and/or seeking relief which the court cannot give.

The final orders of the court dismissed the appellant’s interlocutory applications FDNs 2, 9, 12 and 13, allowed the appeal for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015, and struck out the remaining grounds of the appeal as incompetent and/or disclosing no appealable error for which appellate remedy is available and/or seeking relief which the court cannot give.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I am satisfied that the appeal against the Variation Order lies to a single Judge of this Court, that no Constitutional issue arises, and that the appeal should be allowed on a limited basis to strike out the Variation Order but otherwise be dismissed.Background The background to M’s care situation is set out in submissions filed on behalf of the minister and in the affidavit of Natalie Kate Kralj filed on 9 May 2016 received into evidence during the hearing of the Minister’s application.[1] Ms Kralj is a social worker with the Department for Education and Child Development (“the Department”) who supervises M’s caseworker. In describing M’s care situation, Ms Kralj deposes to matters that have occurred since the making of the Variation Order which amount to fresh evidence.[2][1] Exhibit R1.[2] This Court has power to receive fresh evidence on an appeal under s 22 of the Youth Court Act 1993 (SA): H, A v Minister for Families & Communities [2005] SASC 339 at [27]-[32] (White J); L, G v Minister for Families and Communities (2012) 113 SASR 152 at [21] (Peek J, Vanstone J concurring).The Order M’s mother resides in Victoria. The identity of his father is unknown. On 30 June 2010, M was subject to an emergency removal from a dangerous situation pursuant to s 16 of the Act. Immediately prior to the Department’s intervention, M had been in the custody of the appellant. M has not been returned to the appellant’s custody. On 13 September 2010, the Minister was granted a 12 month guardianship order. In 2011, the Minister brought proceedings in the Youth Court seeking to have M placed under the guardianship of the Minister until he attains the age of 18 years. The Minister’s application was granted and the care and protection order (“the Order”) was made on 16 November 2011 pursuant to s 38 of the Act. The Order comprises the primary order placing M under the guardianship of the Minister pursuant to s 38(1)(d) and ancillary orders pursuant to s 38(1)(f) granting M’s mother and grandmother supervised access subject to M’s wishes as may be agreed with the Minister. Following the making of the Order, M was placed with various relatives (known as kinship carers) in New South Wales and Queensland. M moved to New South Wales in 2012 and was placed with his maternal uncle and his wife. Towards the end of 2013, the placement was showing signs of breakdown and the New South Wales Department for Family and Community Services reported that there were ongoing requests by M’s uncle for respite and that he and his wife held unrealistic expectations regarding M’s behaviour. Whilst with his uncle, M had regular respite with his maternal cousin, K, and her partner in Queensland. On 2 January 2014, K and her partner agreed to provide ongoing care for M and were approved as carers by the Department. On 20 February 2014, M was placed in their full time care. At that time, consideration was given to transferring the administration of the Order to the Department of Communities, Child Safety and Disability Services in Queensland (“the Queensland Authority”).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

In the following orders I have allowed the appeal on a limited basis and set aside the Variation Order. In the circumstances I have dismissed the appellant’s interlocutory applications FDNs 2, 9, 12 and 13.Conclusion As I have determined the appeal against the Variation Order is interlocutory in nature within the meaning of s 22(2)(b) of the Youth Court Act, I make the following orders allowing the appeal and setting aside the Variation Order in light of the change in M’s circumstances since the Variation Order and the legal difficulty/lacuna created by the interaction of the Act and the Qld Act:1The appellant’s interlocutory applications FDN 2, 9, 12 and 13 are dismissed.2The appeal is allowed for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015 thereby restoring the ancillary orders for access to the Order made by Judge Prescott on 16 November 2011. 3The remaining grounds of the appeal are struck out on the basis that they are incompetent and/or disclose no appealable error for which appellate remedy is available and/or seek relief which this Court cannot give.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

The appellant contends that her grounds of appeal are non-service of documentation, insufficient time to consider documentation served on her just before the hearing on 10 August 2015, refusal of an adjournment by the Youth Court, and discrimination.The notice of appeal operates as a stay against the registration of the Order in Queensland Pursuant to s 54Q(2) of the Act, the notice of appeal filed by the appellant operates as a stay of the Variation Order preventing the registration of the Order in Queensland. The transfer of child protection orders (and proceedings) as between States and Territories is pursuant to a co-operative national scheme with each State and Territory having reciprocal legislative provisions.[7][7] Child Protection Act 1999 (Qld) Chapter 7; Children and Young Persons (Care and Protection) Act 1998 (NSW) Chapter 14A; Children and Community Services Act 2004 (WA) Part 6; Children, Young Persons and Their Families Act 1997 (Tas) Part 8; Children, Youth and Families Act 2005 (Vic) Schedule 1; Care and Protection of Children Act (NT) Part 2.4; Children and Young People Act2008 (ACT) Chapter 17. An order made in an original jurisdiction (in this matter the Youth Court of South Australia) to transfer an order to another jurisdiction only becomes effective once it has been registered in the relevant court of the receiving jurisdiction (in this matter the Children’s Court of Queensland). The Order has not been and cannot be registered in Queensland while the appellant’s appeal remains on foot.[8][8] Child Protection Act 1999 (Qld) s 222.The approach suggested by the Minister Counsel for the Minister submitted that, in light of the breakdown of M’s placement in Queensland and the fact that the Queensland Authority has indicated it is no longer prepared to take on the administration of the Order, for the administration of the Order to return to the Department it would first have to be registered in Queensland. The Department would then have to issue proceedings in the Queensland Children’s Court to have the matter transferred back to South Australia. It was submitted that whilst the Order cannot be registered in Queensland the Queensland Children’s Court has no jurisdiction because there is no child protection order or proceeding in Queensland to transfer back to South Australia.[9][9] Child Protection Act1999 (Qld) s 225. Counsel proposed that, in these unusual circumstances, in order to overcome this difficulty or lacuna, the Minister and the appellant can achieve a mutually satisfactory result if the appeal is allowed on a limited basis so that the Variation Order can be quashed or set aside pursuant to s 22(3) of the Youth Court Act. During the hearing on 24 June 2016, in supporting the Minister’s application, counsel for M stated that in view of the significant change in M’s circumstances it was in M’s best interest for the Order to be administered in South Australia. An order quashing/setting aside the Variation Order will return the parties to the position they were in prior to the Chief Executive Officer’s application to transfer the Order to Queensland. This means the ancillary orders made by Judge Prescott on 16 November 2011 including the appellant’s supervised access order, will be restored.