SB, MF v Minister for Education & Child Development

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.