SH v Chief Executive of the Department for Child Protection

[2022] SASC 109

Supreme Court of South Australia

(Magistrates Appeal: Civil)

SH v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2022] SASC 109

Judgment of the Honourable Justice McDonald 

30 September 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN

This is an appeal against a decision made by a Magistrate of the Youth Court on 8 February 2022 to place the appellant’s daughter under the guardianship of the Chief Executive of the Department for Child Protection until she attains the age of 18 years pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA). The appellant filed a Notice of Appeal relying on a single ground of appeal, namely that the Magistrate erred in the exercise of his discretion in making the order that the child is to be placed under the guardianship of the Chief Executive until she attains the age of 18 years. Within that ground, seven sub-grounds were provided. The appellant seeks an order of this Court setting aside the decision of the Magistrate, replacing it with a decision to dismiss the Chief Executive’s application, resulting in his daughter being returned to his care.

The respondent submitted that the appeal should be dismissed on the basis that the appellant failed to demonstrate that the Magistrate committed any appellable error. Further, the respondent submitted that even if the Magistrate fell into error, the appellant is unable to demonstrate that, absent such error, it would have led to a different outcome.

Held, dismissing the appeal:

1.None of the matters raised in this appeal, either individually or in combination, establish that the Magistrate was in error in exercising his discretion to place the child under the guardianship of the Chief Executive until she attains the age of 18 years.

Children and Young People (Safety) Act 2017 (SA) ss 7, 8, 10, 18, 41, 50, 53(1)(a), s 53(1)(e), 53(1)(g), 63(1); Child Sex Offenders Registration Act 2006 (SA) s 4; Youth Court Act 1993 (SA) s 22, referred to.

Fox v Percy (2003) 214 CLR 118, applied.
House v King (1936) 55 CLR 499; Lee v Lee (2019) 266 CLR 129, discussed.

CDJ v VAJ (1998) 197 CLR 172; M, L v Minister for Education and Child Development [2018] SASCFC 131; Legal Professional Conduct Commissioner v Fowler (2020) 136 SASR 252; R v Lutze (2014) 121 SASR 144, considered.

SH v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASC 109

Magistrates Appeal:   Civil

McDONALD J:

1. This is an appeal by SH (‘the appellant’) against a decision made by a Magistrate in the Youth Court on 8 February 2022, to place the appellant’s daughter under the guardianship of the Chief Executive of the Department for Child Protection (‘the Chief Executive’) until she attains the age of 18 years pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (‘the Act’).

2. The appellant seeks an order of this Court setting aside the decision of the Magistrate, replacing it with a decision to dismiss the Chief Executive’s application, resulting in his daughter being returned to his care.

   Background

3. The appellant is the biological father of EH (‘the child’), born on 15 August 2008, now aged 14 years.  In August 2009 the child’s biological mother died.  The appellant had been convicted in 2002 for serious sexual offences against his then 14-year-old stepdaughter from a previous marriage.  He was sentenced to six years and six months imprisonment, with a non-parole period of three years and six months.[1]  In 2011 the Department for Child Protection (‘the Department’) obtained a 12 month supervision order following concerns about the risk of the child being sexually abused by the appellant.  An application from the Department for a long-term order was subsequently refused and the child was reunified with the appellant.

   [1]     The appellant was initially sentenced to a period of imprisonment of six years and six months, with a non-parole period of four years. The appellant appealed against sentence. The appeal was allowed for the purpose of substituting a non-parole period of three years and six months.

4. In 2019 the appellant was arrested and detained in custody for a period of several months for failing to comply with reporting obligations for child sex offenders under the Child Sex Offenders Registration Act 2006 (SA) (‘the ANCOR offences’) between early 2016 to mid-2019. On 30 January 2020, the appellant pleaded guilty and was convicted of those offences.

5. While the appellant was in custody, the child was placed in the care of people known to the appellant through his church. The child was later placed in the care of Ms S – another person known to the appellant. The Chief Executive considered such care arrangements to be unsafe for the child and consequently in October 2019 made an unsuccessful application for guardianship in the Youth Court. Instead, on 18 November 2019, the Youth Court ordered that the child be under the supervision of the Chief Executive pursuant to s 53(1)(a) of the Act. The child continued to reside with Ms S under the supervision of the Chief Executive.

6. In early 2020, the appellant and Ms S made arrangements for the child to move to Victoria where she would live with family members of the appellant. This was the catalyst for the Department to intervene, removing the child from her carers and seeking further guardianship orders. On 16 January 2020, Ms S relinquished care of the child to the Chief Executive, who assumed the child’s guardianship pursuant to s 41 of the Act. On 22 January 2020, the Chief Executive applied to the Youth Court for an order that the child be placed under his guardianship for a period of six months pursuant to s 53(1)(e) of the Act. That order was made on 17 April 2020. The Department thereafter applied for a long-term order that the child be placed under the guardianship of the Chief Executive, until she attained the age of 18 years pursuant to s 53(1)(g) of the Act.

7. The Department sought this order due to concerns relating to the safety of the child.  These concerns included the appellant’s sexual abuse of his then 14-year-old stepdaughter in 2002, his convictions for the ANCOR offending, the potential for him to be deported to the United Kingdom as a consequence of this offending,[2] concerns about the appellant’s mental health and his capacity to provide adequate care for the child, and the appellant’s unwillingness or inability to work with the Department to meaningfully address the child protection concerns.

   [2] The appellant was born in the United Kingdom and is not an Australian citizen. It follows that he is liable to have his visa cancelled because he has “a substantial criminal record” for the purposes of s 501 of the Migration Act 1958 (Cth).

8. The appellant opposed the making of the order and argued that no order should be made, or in the alternative, there should be a supervision or reunification order which would ultimately result in the return of the child to the appellant’s care. 

9. On 8 February 2022, the Magistrate made the order to place the child under the guardianship of the Chief Executive.  That decision is now the subject of this appeal.

   Legal principles – Youth Court Magistrate’s appeal

10. Section 22 of the Youth Court Act 1993 (SA) establishes that an appeal from a decision of a Magistrate, other than an interlocutory decision, lies by right to a single Judge of the Supreme Court. There is no requirement to obtain the leave of the Court. On appeal, the Court is empowered to confirm, vary, or set aside the judgment, or remit the matter for hearing or further hearing.

11. The appellant has appealed against an exercise of discretion by the Magistrate.  It is well settled that discretionary judgments and decisions based on value judgments (for example, determinations as to the best interest of a child) can only be set aside on strictly limited grounds.  In order to succeed on the appeal, the appellant must establish a process or reasoning error, or outcome error as identified in House v King.[3]In this decision, Dixon, Evatt and McTiernan JJ stated:[4]

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    [3] (1936) 55 CLR 499.

    [4]     House v The King (1936) 55 CLR 499 at 505.

12. It is clear from the authorities that the appeal is by way of rehearing.[5]  In the High Court decision of Lee v Lee,[6] Bell, Gageler, Nettle and Edelman JJ stated:[7]

    A court of appeal 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 has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. …

    (Footnotes omitted)

    [5]     M, L v Minister for Education and Child Development [2018] SASCFC 131.

    [6] (2019) 266 CLR 129.

    [7]     Lee v Lee (2019) 266 CLR 129 at [55].

13. The Court must form its own view as to the appropriate outcome, however, it must not substitute its own view, or otherwise interfere unless satisfied that the Magistrate fell into error.

14. That is particularly so in child protection proceedings in which there is often room for two good minds to disagree. In proceedings involving the residency of children the “decision will involve a choice of who will be the better ‘custodian’ of the children: sometimes either parent would be an excellent choice, and often neither would be ideal”.[8]

    [8]     CDJ v VAJ (1998) 197 CLR 172 at [117]. Whilst that judgment dealt with proceedings under the Family Law Act 1975 (Cth), the approach is equally applicable to the consideration of where a child should live under the Youth Court Act 1993 (SA).

15. As the majority observed in CDJ v VAJ:[9]

    The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. …

    [9]     CDJ v VAJ (1998) 197 CLR 172 at [152].

16. Such cases are also undoubtedly more likely to excite emotion.  It follows that it is all the more important for this Court to guard against simply replacing the value judgement of a Magistrate with its own.

    A preliminary issue – Fresh evidence

17. Throughout all of the guardianship proceedings the child has remained unwavering in her preference to remain living with her father.  During his submissions, counsel for the appellant Mr McCloud advised that the child had recently drafted a letter knowing that the appeal was due to be heard.  I was told that the letter sets out the child’s feelings about the matter and counsel for the appellant requested that I receive it.  He provided an explanation as to why he sought to put the letter before the Court:[10]

    …the purpose behind it is not to I guess change the landscape of the case, in a sense, because it simply reiterates her view that she wishes to be reunified with her father.  The purpose behind its tender, in my submission, is that it’s consistent with the statutory – I won’t call it a right, but a statutory imperative for children’s views, who are the subject of these orders, to be heard as far as that’s possible, and in my submission this letter has been prepared by her because she’s felt that during the course of proceedings she wasn’t adequately heard. Whether that’s unfair or not is another question, but that was her perception, and she’s written this letter with the hope that she will be heard, and in my submission it would be proper for this court to receive that to hear her voice in relation to these proceedings, and what weight your Honour might give to it is obviously a matter for the court.

    [10]   Transcript of Proceedings, SH v Chief Executive of the Department for Child Protection & Anor (Supreme Court of South Australia, CIV-22-002057, McDonald J, 13 April 2022) (‘AT’) at 18.

18. Counsel for the respondent, Ms Ewens, objected to the Court receiving the letter. She made the submission that there were a number of legal and evidentiary issues associated with the receipt of this letter.  She made the point that the provenance of the letter had not been formally proved, that it was a “typed-up letter, undated, unsigned” and has “not been provided as an exhibit to any affidavit explaining how it came to be in existence”.[11] Ms Ewens put to me that whilst s 22 of the Youth Court Act1993 (SA) empowers the Court to receive the letter by way of fresh evidence, the exercise of the discretion to admit such evidence is quite “rare”.[12]  She further submitted that fresh evidence should not be admitted as a matter of course as the Court needed to be satisfied that it was not available at the time of trial, or “it being something so probative going to the grounds that the Court must consider it”.[13]  She also made a ‘floodgate’ argument submitting that “If the Court, as a matter of course, starts accepting evidence of such a nature on appeals, it could very well open the door to further appeals from this jurisdiction as a matter of course, allowing further evidence as a matter of course”.[14]  In addition, she argued that on the facts of this case, there was no probative value to the letter in that it contained no more than the views that the child expressed throughout the trial.  Ms Ewens concluded her submissions by observing that the fact that someone has obtained a letter from the child is concerning in that it is “not a very child friendly-process”.[15]

    [11]   AT19.

    [12]   AT19.

    [13]   AT19.

    [14]   AT20.

    [15]   AT20.

19. I pause there to observe that it seems to me that there is very little about this process that could be described as child-friendly.

20. Ms Burgess appeared for the child both at trial and on the appeal. In doing so, Ms Burgess was required to comply with s 63(1) of the Act. That section provides:

    63 — Legal practitioners to comply with this section when representing child or young person

    (1)In acting for a child or young person under this Act, a legal practitioner must, to the extent that it is consistent with the legal practitioner’s duty to the court to do so, comply with the following provisions:

    (a)     the legal practitioner must, as far as is reasonably practicable, act in accordance with any instructions given by the child or young person;

    (b)     to the extent that the child or young person has not given, or is not capable of giving, instructions, the legal practitioner must act in accordance with the legal practitioner’s own view of the best interests of the child or young person;

    (c)     the legal practitioner must, in a manner appropriate to the capacity of the child or young person to understand, explain to the child or young person the nature of the legal practitioner’s role in relation to the child or young person (including any limitations on the legal practitioner’s ability to act in accordance with their instructions);

    (d)     in any proceedings before the Court, the legal practitioner must explain to the Court the basis on which submissions are made, having regard to the preceding paragraphs.

    (2)A legal practitioner cannot, in complying with this section, be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted form of professional conduct.

21. Section 63(1) of the Act creates an onerous responsibility for a legal practitioner acting for a child. They are required to balance “as far as is reasonably practicable” the instructions of the child and arrive at their own view as to what is in the best interests of the child. The Act sets out no criteria or considerations to be taken into account in order to assist the practitioner to make such a judgement.

22. In her written closing address at the end of the trial, Ms Burgess set out how she had approached that task in this case in the following terms:

    [13]As independent counsel for [the child] my role was to make a determination of what is in [the child’s] best interests (given she was unable to provide instructions in the true legislative sense ie have a sufficient understanding to appreciate the circumstances that pose a risk to her safety and to make rational judgments about prevention of harm to herself).

    [14]At the outset of the trial counsel and instructing solicitor took the view that this was a complex case and it was best to hear the evidence.  This necessarily required the evidence to be tested in Court by robust cross-examination and critically evaluated to ensure that the opposing arguments were understood and weighed appropriately.

    [15]I confirm that I have brought an impartial mind to the task and not been influenced by the views of others or pressured into formulating a position and advocating for that position.

    [16]Dr Swift confirmed counsel’s views that it was not appropriate for [the child] to be privy to all of the materials in the trial book at age 11 or 12 years.  She said that ordinarily a child of that age wouldn’t know the criminal history or ins and outs of their parent’s sexual criminal history or even know about the ins and outs of sexual behaviour T409.

    [17][The child] was at the time of the trial still in a residential care placement T370 with two other girls – a 14 year old and a 17 year old.  A family based long term placement was “in the pipeline” but there was no more certainty than that at the time the trial concluded T370.

    [18][The child] was 13 at the time she attended at Court and spoke with the Magistrate directly about her views.  These views echoed the views she expressed to Dr Swift and Mr Waples and Ms Di Carlo – that is that she wanted to return to her father’s care immediately or as soon as possible should she be allowed to do so.  Ms Di Carlo said it had been reported to her that [the child] has been concerned about her situation in residential care and has been looking for stability T281 and that [the child] feels uncertain about her future.  It has been reported to her that [the child] has been dealing with a lot of emotions and she had been upset by the Court process and the length of time it is taking.  It has also been reported to Ms Di Carlo that [the child] has been worried about the outcome of the proceedings and what might happen.  All of these feelings would be reasonable feelings for someone in [the child’s] position to have given her circumstances.

    [19]As Dr Swift made clear at T381 [the child] should be listened to.  The difficulty lies in the fact that her wishes don’t sit well with the Chief Executive’s case.

    [20]Whilst this case might be considered to be somewhat unique and reasonably complex because of the competing considerations and large amount of materials and witnesses, the issues have crystalised as the trial has gone on.  [The appellant] has been observed in Court over multiple days and the evidence he has presented including his own has been thoroughly tested.  Impressions have been formed.  Much time has been spent weighing up the apparent risks to [the child] and reviewing the transcript of the evidence.  Objective analysis has occurred and much care has been taken to again review the documentary materials which form part of the Chief Executive’s case and [the appellant’s] case now that the evidence has been concluded and prior to forming my final conclusion.

    [21]After careful consideration counsel for [the child] has formed the view that the application made by the Chief Executive for a long term order should be supported despite this not coinciding with [the child’s] wishes.

1. Consistent with the approach that she adopted at trial, the position Ms Burgess took on the issue of whether the Court should receive the letter, was relatively neutral.  She acknowledged the force of both arguments, however, came to the ultimate position that she would not attempt to stand in the way of the Court receiving the letter if it was determined to be appropriate.

2. I reserved my decision in relation to the tender of the letter but subsequently advised the parties that I would receive it.  I did so on the basis that there is no doubt that the most important and vulnerable person in these proceedings is the child.  She is, however, not present in Court.  She has a legal representative who has, quite properly, come to a decision that what is in the child’s best interest is contrary to the child’s desired outcome.  In my view these were not the circumstances in which to take the technical point about the provenance of the letter when common sense should prevail, and an agreement reached.  Further, whilst the letter may say no more than what has already been said a multitude of times, surely in proceedings such as these that will have such a significant impact on the child’s life, she should have some ability to convey her views in her own words to this Court.

3. The letter was accompanied by an affidavit sworn by the appellant.  In that affidavit he deposed that he had received the letter in its typed form at the end of a supervised access visit with the child on 11 April 2022.  He had knowledge of the letter prior to the child handing it to him.  The appellant asked the child if she wanted him to provide the letter to her lawyer, to which she responded “yes”.  After the visit the appellant made contact with the child’s lawyer and arranged for a copy to be emailed to her.

4. I have read the letter provided by the child.  It sets out her hopes and fears for the future.  In the letter the child cannot make it clearer that her preferred outcome is to return to live with her father.  I take that letter into account insofar as I am able.

   Grounds of Appeal

5. The appellant filed a Notice of Appeal (‘the Notice’) relying on a single ground of appeal, namely that the Magistrate erred in the exercise of his discretion in making the order that the child is to be placed under the guardianship of the Chief Executive until she attains the age of 18 years pursuant to section 53(1)(g) of the Act.  Within that ground, seven particulars were provided.  These were:

   The learned magistrate erred in the exercise of his discretion in making an order pursuant to s 53(1)(g) by:

   a)failing to properly apply s7, the paramount consideration of the Act, that being to ensure the child was protected from harm, due to her removal from her father’s care in which she has suffered no harm, and being placed into residential care or rotational care, where she is at risk of serious harm that is endemic to the residential care or rotational care environment (being possible violence of other residents, possible abuse by staff, living away from her family), and the child’s declining mental health whilst being care for in that environment;

   b)failing to properly apply s8 of the CYPS Act, in that he did not give adequate weight to the needs of the child as set out in s8(a)-(d).

   c)failing to properly apply s8(3), in that he did not adequately advance the desirability of maintaining the connection of the child to her sole surviving parent;

   d)placing substantial weight on an irrelevant consideration, namely the assessment by a psychiatrist that the relationship between the child and her father had become “adultified”, and concluding on that basis that the child was at risk of harm by sexual abuse in her father’s care;

   e)preferring the evidence of a psychiatrist, whose evidence was founded on a biased and inaccurate factual foundation, over the father’s treating psychiatrist and psychologists, regarding the ‘insight’ shown by the father into the child protection concerns, his previous offending behaviour, and the risk of harm to the child arising from the lack of such insight;

   f)considering an extraneous matter, namely the potential outcome of possible proceedings in the Federal Court regarding the applicant’s visa status, and the possible effect of the result of any such proceedings upon the child; and

   g)failing to adequately consider the utility and appropriateness of making a short-term order which would have mitigated the risk of harm to the child;

6. In his submissions counsel for the appellant encapsulated these issues into three main complaints.  These were that the Magistrate had placed undue weight on the evidence of Dr Jureidini in preferring his evidence over that of other experts, that the Magistrate had placed insufficient weight on the desire of the child to live with the appellant, and that the Magistrate had failed to properly consider the risk arising from the child being cared for in a residential care environment.[16]  Whilst counsel for the appellant did not abandon the other issues raised in the Notice, he made it plain that the three matters identified were central to the resolution of this appeal. 

   [16]   AT2.

7. I propose to adopt a similar approach in that I will first deal with the three main complaints relied upon and will then consider those additional issues raised in the particulars of the ground of appeal.

   Legal principles – The weight of the evidence

8. Distilled down each of these complaints relate to the weight that the Magistrate did or did not give to various aspects of the evidence.  A complaint about the giving of insufficient or excessive weight to a particular issue or piece of evidence does not and cannot justify appellate interference with a decision unless the decision is plainly unjust and could not have reasonably been reached.[17]  A contention that a Magistrate placed undue or excessive weight on witnesses or other considerations arising from the evidence cannot of itself be a vitiating error.[18]  Furthermore, it is well established that within the discretion exercisable by a decision maker, provided all relevant matters have been considered and irrelevant matters have not, and the outcome is reasonably open, there exists an area of judicial freedom as to the exercise of discretionary decisions upon which reasonable minds may differ as to the appropriate outcome.

   1. The Magistrate placed undue weight on the evidence of Dr Jureidini in preferring his evidence over that of the other experts

   [17]   R v Lutze (2014) 121 SASR 144 at [45]-[47] per Vanstone and Parker J.

   [18]   Legal Professional Conduct Commissioner v Fowler (2020) 136 SASR 252 at [72].

9. The trial of this matter proceeded over 13 hearing days from late March 2021 to late September 2021, with supplementary written submissions furnished in October 2021.  A large number of witnesses were called by the parties.  Many of those witnesses gave expert evidence.  A significant volume of statements and expert reports were tendered.  Dr Jureidini was one of the experts called by the Chief Executive.  In order to properly assess the manner in which the Magistrate relied upon Dr Jureidini’s evidence, it is necessary to consider it in the context of the evidence of the other main expert witnesses who gave evidence or provided reports.

10. I set out a table of those witnesses who are most relevant to this ground of appeal and their role:[19]

    [19]   I have omitted a report provided by Dr Craig Raeside from this table as his role was to provide a report for when the appellant was to be sentenced in 2002.  It was clearly remote in time and context.

Witness	Role	Nature of Evidence
Dr Georgie Swift[20]	·   Consultant Psychiatrist. ·   Psychiatrists for children in care.	Co-authored the Parenting Capacity Assessment Report with Dr John Jureidini. Met with and interviewed the child on 2 March and 23 March 2020 in order to prepare the report. Made the observation that the child had taken on a “parentified role” in her relationship with her father.
Dr John Jureidini[21]	·   Consultant Psychiatrist. ·   Senior Child Psychiatrist, Women’s and Children’s Hospital, Adelaide.	Co-authored the Parenting Capacity Assessment Report with Dr Georgie Swift. Met with and interviewed the appellant on 24 March and 31 March 2020.
Dr Angelos Giannakoureas[22]	·   Consultant Psychiatrist.	The appellant’s treating psychiatrist since June 2020. Involved in the ongoing treatment of the appellant for anxiety and an adjustment disorder.
Mr Richard Balfour[23]	·   Private Clinical Psychologist.	Provided a Court ordered report of a psychological assessment of the appellant addressing: 1.    The risk pertaining to the appellant’s sexual reoffending. 2.    The risk pertaining to the appellant continuing to breach his ANCOR conditions. 3.    Recommendations as to what level of support and/or programs that the child should engage with to bolster her understanding of the appellant’s offending (in a developmentally appropriate manner) and to increase her knowledge and skills to implement safe and appropriate boundaries.
Dr Nicole Bevan[24]	·   Psychologist, Families SA, Department of Families and Communities.	Co-authored a Parenting Capacity Assessment Report with Patricia Rayment in July 2010.  Recommended in that report that the child should be placed under the Guardianship of the Minister until the age of 18 years and that the appellant should be granted supervised contact with the child twice weekly.
Ms Patricia Rayment[25]	·   Principal Psychologist, Families SA, Department of Families and Communities.	Co-authored a Parenting Capacity Assessment Report with Dr Nicole Bevan in July 2010.  Recommended in that report that the child should be placed under the Guardianship of the Minister until the age of 18 years and that the appellant should be granted supervised contact with the child twice weekly.
Dr Matt Dunbar[26]	·   Paediatric Psychiatrist.	Conducted five therapy sessions with the child between 23 June 2020 and 30 July 2020. His clinical impressions following five sessions of contact with the child support a conclusion that there is a parentified quality to the relationship with her father.
Dr Jules Begg[27]	·   Forensic Psychiatrist.	Provided a report for the appellant’s lawyers in December 2010 as to the appellant’s suitability to be the child’s guardian. He did not undertake a parenting capacity assessment. He saw no impediment to the appellant being the guardian and carer for the child and expressed the view that it would seem inappropriate that the child be placed under the Guardianship of the Minister at that time.
Mr Greg Fell[28]	·   Clinical Psychologist.	Treating psychologist of the appellant between 30 June 2020 and 18 March 2021.
Dr Jeffrey Bollard[29]	·   Clinical Psychologist.	Treating psychologist of the appellant. Observed a supervised access visit between the appellant and the child and viewed a 20 minute recording of a supervised visit that took place on Father’s Day. Expressed the view that whilst he has no doubts about the appellant being well-equipped in terms of straightforward parenting skills to care for the child, there were other issues that made him cautious about the appellant’s readiness to assume full time care of the child at this time.  His concerns related to broader aspects of the appellant’s psychological functioning such as his social judgment and interpretation of other people’s behaviour.
Mr Shawn Sowerbutts[30]	·   Psychologist, Owenia House.	Provided a report on the appellant’s attendance at Owenia House for treatment. Between July 2000 and 16 April 2008 the appellant completed about 24 months of treatment.  In 2010 he expressed the view that the appellant’s risk of reoffending was regarded as low relative to other adult male sex offenders, and as having been further lowered by treatment.
Elaine Smale[31]	·   Clinical Psychologist.	Provided the appellant with psychological therapy between October 2007 and April 2009, and between February 2010 and 8 November 2010. Indicated that whilst she cannot make an assessment of whether the appellant is fit to be a parent, she had seen him over a relatively long period of time and had not observed any behaviour that had given her any cause for concern.

[20]   Exhibit CE1 at 114-117; TT364-365.

[21]   Exhibit CE1 at 114-117; TT447-550.

[22]   Exhibit CE1 at 112-113; Exhibit FA1 at 11-14; 15-16; Exhibit FA2 at 61; T620-750.

[23]   Exhibit CE1 at 118-159.

[24]   Exhibit CE1 at 160-180.

[25]   Exhibit CE1 at 160-180.

[26]   Exhibit CE1 at 197-204.

[27]   Exhibit FA1 at 17-23.

[28]   Exhibit FA6.

[29]   Exhibit FA3 and FA4.

[30]   Exhibit FA1 at 1-5.

[31]   Exhibit FA1 at 6-10.

1. As is apparent from the above table, whilst there was some overlap between the topics covered by some of the experts, there were also significant differences in their focus and the time frame over which they had dealings with the appellant and for the child.  It was for the Magistrate to sift through this evidence and determine how much weight, if any, he placed on each witness and/or report. 

   Relevance of the evidence of Dr Jureidini to the determination of the application in the Youth Court

2. This case involved the analysis of complex and interconnected matters that were said to present a risk of harm to the child.  The central issue on the question of harm was the risk the appellant posed should the child reside with him given his history of sexual offending and breaches of his ANCOR obligations.  It was as to this assessment of risk that the evidence of Dr Jureidini was relevant. 

3. Dr Jureidini is a senior child psychiatrist at the Women’s and Children’s Hospital who was requested to co-author a Parenting Capacity Assessment Report with Dr Georgie Swift,[32] who is also a consultant psychiatrist at the same hospital.

   [32]   Exhibit CE1 at 114-117.

4. Dr Swift gave evidence about the purpose of a parenting capacity assessment:[33]

   The purpose of a parenting capacity assessment is to make an assessment of a parent’s ability to reflect, mentalise, take responsibility for any alleged child protection concerns and make an assessment about whether they’re likely to be a safe or good enough parent in the future. The crux of that really is around the ability to take responsibility for the allegations, or if they’ve been proved, what’s been done, and to look at doing things differently in the future to make a safe and good enough environment for the child.

   It follows from this answer that the report of Dr Jureidini and Dr Swift addressed the central issue under consideration in the Youth Court.

   [33]   Transcript of Proceedings, Re [EH] (Youth Court of South Australia, ACC-20-1749, Magistrate White) (‘TT’) at 366.

5. Dr Jureidini explained how they approached the preparation of a Parenting Capacity Assessment Report:[34]

   … a parenting capacity assessment in our hands is a staged process. The first part of it is to collect information from other sources and analyse that. The second part is to see the parents on their own and… in a case where it’s a child of [the child’s] age we see the child on their own and then if we were feeling it was safe to proceed with joint work we would do that.

   [34]   TT827.

6. Dr Jureidini went on to explain that such were their concerns about the nature of the relationship between the appellant and the child that they did not believe that it was appropriate to see them together.[35]

   [35]   TT827.

7. The division of labour was that Dr Jureidini met with and conducted two interviews with the appellant whilst Dr Swift met and interviewed the child.  Although a single report was produced, it is apparent that Dr Jureidini prepared the section of the report that appears under the heading “Assessment of [the appellant]”.  There was then a further section headed “Assessment of [the child]” which was prepared by Dr Swift.  There was a joint conclusion at the end of the report in which various aspects of the observations and opinions of the psychiatrists were drawn together. 

8. In his portion of the report, Dr Jureidini commenced by setting out various aspects of the personal history provided by the appellant.  Dr Jureidini then explored in greater detail the circumstances in which the appellant had come to sexually offend against his stepdaughter.

9. Dr Jureidini raised as a particular concern the fact that on the one hand the appellant purported to express remorse for his offending, acknowledging that it was completely unacceptable, whilst at the same time providing a rationale for what had happened.  The appellant suggested to Dr Jureidini that his offending may be explained by the fact that his stepdaughter had dark skin and because his father had been racist, he had taught the appellant to “regard black people as of lesser significance”.[36]  The appellant further rationalised that the offending had occurred in circumstances in which his wife had become depressed and less present, leaving his stepdaughter to take over the role of primary carer.  The appellant described that over this time he became “closer and closer” to his stepdaughter. Dr Jureidini observed that on the appellant’s account it appeared “that a kind of parenting partnership had been formed between them in an inappropriate way prior to the sexual abuse”.

   [36]   Parenting Capacity Assessment Report, 26 May 2020 at 2.

10. In the report Dr Jureidini also expressed concerns that the appellant had been inconsistent in his account about the circumstances in which he came to offend against his stepdaughter, as well as the nature of his involvement with other young women with whom he’d had contact that resulted in the ANCOR offending.

11. Dr Jureidini concluded his portion of the report with the observation:[37]

    Because of [the appellant’s] narrative style, it is difficult to tie down specific contradictions but there were several, including his contradictory explanations for pleading guilty to recent charges.  Overall, [the appellant] provides plausible explanations for most of the concerns that are raised; however some of these explanations are contradictory.  Of course, whether he is lying is a matter for the court to decide and it is not our place as psychiatrists to make judgements on his reliability.

    [37]   Exhibit CE1 at 115-116.

12. The joint conclusion in the report is brief.  Given the prominence that the criticisms of Dr Jureidini have taken on in this appeal, I set it out in full:[38]

    [38]   Exhibit CE1 at 117.

    Conclusion

    In our opinion, a significant part of [the child’s] desire to be reunited with her father is due to her anxiety about how he is coping without her.  When [the child] spoke of her father and of their relationship it had a quality of speaking about an intimate partner relationship rather than father-daughter one.  This has parallels to what happened with [the child’s] father and his stepdaughter; the mother withdrew when she was sick and [the child’s] father formed a relationship more akin to an intimate partner and parenting relationship which evolved to an inappropriate sexual relationship.  [The child’s] mother also died and for some 10 years it has been her and her father.  We are very concerned that [the child] has taken on a parentified role [in] their relationship and that she feels a responsibility to care for her father.  [The child] is expressing the desire to engage in therapy and we think she will benefit from this.

    Because of concerns about the reliability of some aspects of [the appellant’s] history and the quality of the relationship between him and [the child], we cannot offer reassurance that [the appellant] is a safe parent for [the child] or that she would be better off with him than in her current care circumstances.  We therefore recommend that long-terms orders be sought for [the child].  It is essential that she be provided with individual therapy and that all possible steps be taken to optimise her placement.

1. It is apparent from the terms of the conclusion that most of the information and observations relied upon must have come from Dr Swift’s interview of the child. 

2. Dr Jureidini gave evidence at trial.  In examination-in-chief, Dr Jureidini further elaborated on aspects of his report in relation to the appellant justifying his sexual offending against his stepdaughter whilst also purporting to express remorse, he explained:[39]

   … and then in my role in doing a parenting capacity assessment I always want to test because it’s easy to say ‘I feel remorseful’, we need to challenge that gently and empathically not aggressively. So I’m looking for more detail, more depth to the description and I was concerned about the kind of excuses that were given about having been brought up as a racist and therefore thinking it was a lesser crime because the child was black. It wasn’t expressed in a way to say ‘How absurd was that and how poor judgment that was on my behalf even if it was true that black people are lesser how could that possibly be a justification for having sex with my daughter or my stepdaughter.’  That wasn’t the way it was presented. It was more as ‘I’d like you to understand that this was a kind of lesser offence than it might have seemed because I was racist’ and similarly the idea that this was consensual, to talk about the fact that a child doesn’t object to a sexual relationship doesn’t make it consensual and if [the appellant] hadn’t learnt that over the years of his incarceration and beyond that that made me very concerned.

   And further:[40]

   Certainly we don’t, in this kind of work, expect parents to come in and immediately take full responsibility for what they’ve done. What we’re looking for is what appears to be, you know, sincere acknowledgement of at least some aspect of the behaviour, the destructiveness of it. And we’re, you know, we’re keen to build from that to a fuller sense of responsibility. But while we got the words associated with taking responsibility for the behaviour, as I’ve tried to point out, the under - it didn’t seem to have a solid foundation. So I’d prefer to hear somebody come along and only take partial responsibility for what they’d done but appear to do that authentically and sincerely rather than make a kind of overall statement, ‘This was a bad thing to do, I take full responsibility, I’m very remorseful’, but then, when you scratch below the surface, there didn’t seem to be the kind of foundations for that statement.

   [39]   TT449-450.

   [40]   TT453.

3. When asked about the reference in the report to the appellant making contradictory statements about his offending Dr Jureidini explained:[41]

   It’s not unusual for - in this kind of child protection work for parents to make contradictory statements and, you know, usually if you - because they’re confused or wanting to say the right thing or whatever; usually you can understand where that’s coming from. With [the appellant], when I tried to explore the apparent contradictions, the response was kind of obfuscating and I couldn’t really make sense with him of what was going on. I couldn’t get a kind of straight answer about it, so I guess that’s what I’m referring to.

   [41]   TT451.

4. Dr Jureidini was cross-examined at length by Ms Burgess and the appellant who was self-represented.  Much of that cross-examination focussed on the approach adopted by Dr Jureidini in his two interviews with the appellant.

   Criticism of Dr Jureidini’s evidence

5. Counsel for the appellant made submissions on appeal suggesting that the Magistrate placed undue weight on the evidence of Dr Jureidini and made several criticisms of that evidence.  These were that Dr Jureidini conducted his assessment of the appellant premised on a range of factual matters that were demonstrably incorrect, that he had prejudged the matter and was biased against the appellant, that he gave evidence which fell outside of his expertise and that his evidence was at odds with all of the other experts.

6. The first two criticism made of Dr Jureidini arose out of three topics that Dr Jureidini raised with the appellant during his interviews with him. These were the death of the appellants first wife, the nature of the ANCOR offences and the circumstances surrounding the appellant’s release from the Baxter Immigration Detention Centre. It was submitted by counsel for the appellant that the manner in which Dr Jureidini dealt with those topics in the interview, and subsequently in the report and evidence, demonstrate why it was contended that the Magistrate placed too much weight on his evidence.

   The circumstances of the death of the appellant’s second wife

7. Dr Jureidini gave evidence that at some time after the appellant’s first interview, he was provided with information that the appellant’s former mother-in-law had alleged that the appellant was in some way involved in his second wife’s death.  That was one of the reasons why Dr Jureidini arranged for a second interview. Dr Jureidini explained that at the second interview he told the appellant that he had been alerted to an accusation that the appellant had been involved in his wife’s death.  It was his evidence that the reason that he raised the topic is that he was told that the Department were not completely satisfied that they could exclude the possibility that the appellant had contributed to his wife’s death and on that basis, he believed that it was appropriate for him to explore that issue at the assessment.[42] 

   [42]   TT785.

8. In cross-examination the appellant asked Dr Jureidini why he had thought it was appropriate to raise this topic and he replied: “Because I think it would have a fair bearing on somebody’s parenting capacity if they’d been involved in the death of their partner”.[43]

   [43]   TT778.

9. In submissions on the appeal, counsel for the appellant was highly critical of Dr Jureidini for interviewing the appellant on the topic of the circumstances of his wife’s death.  There appear to be two bases for this criticism.  Firstly, that it demonstrated that Dr Jureidini was biased against the appellant and secondly, that by introducing the topic, the second interview was “derailed” in that the appellant became anxious and was not able to perform as well as he might have otherwise.

10. In terms of the suggestion of this line of questioning demonstrating bias, Dr Jureidini gave a plausible explanation for why he raised this topic.  The effect of his evidence was that it would have been remiss for him to have not raised it once he was made aware of the allegation.  He saw it as part of his role to fully canvass any matter that was brought to his attention that may have impacted on the appellant’s ability and appropriateness to care for the child. 

11. The use to which Dr Jureidini put this information is also relevant to an assessment of the suggestion of bias.  The only reference to this aspect of the interview that appears in the report is “we understand there have been allegations that [the appellant] was involved in his wife’s death, but he strongly denied this”.[44]  Such a neutral passing reference cannot be suggested to evidence any bias on the part of Dr Jureidini.  The topic was only raised in Dr Jureidini’s evidence because the appellant introduced it during cross-examination. 

    [44]   Parenting Capacity Assessment Report, 26 May 2020 at 1.

12. As to the suggestion that the mention of this topic unnerved the appellant to such an extent that it impacted on his ability to present as well as he could have otherwise, this should be considered in the context of the overall nature of the interviews that were being conducted.  These were interviews in which the appellant was discussing his sexual offending against his 14-year-old stepdaughter and the risk of him engaging in similar behaviour with his biological daughter.  It would be reasonable to think that every topic raised in such an interview would be confronting.  Dr Jureidini gave some general evidence about the nature of these parental interviews and the topics canvassed.  He said:[45]

    It can be very distressing to parents because we have to go into the dark places because those places won’t come out every day or even every month or every year, but the danger is that they’ll come out at some point and the child will be hurt. So it’s absolutely an essential part of a parenting capacity assessment that we do go to the darkest possible places.

    [45]   TT814.

13. In the context of the nature of the interviews that the appellant was participating in, it would be surprising if questions about the circumstances of the appellant’s first wife’s death and an allegation by his mother-in-law that he may have been in some way involved had any profound impact on him.

14. In cross-examination, counsel for the child asked Dr Jureidini about whether he observed the appellant demonstrating any signs that he was experiencing any particular anxiety at the point that topic came up in the interview.  He responded: “Not beyond the ordinary nervousness that I’d expect in a situation like that”.[46]  When asked about whether he would normally expect to see symptoms of anxiety if observing a person in an interview situation he said:[47]

    People can become quietly over aroused and it not be evident, so I can’t say that I 100% am able to pick up when somebody is anxious, but I would be reasonably confident that I could tell if somebody was feeling overwhelmed by what we were talking about.

    Dr Jureidini said that was not the case here, there was nothing to indicate any particular anxiousness on the part of the appellant.

    [46]   TT846.

    [47]   TT846.

15. Given this line of cross-examination it is significant that, although the appellant gave evidence, he did not say anything to suggest that the introduction of the topic of the circumstances of his wife’s death effected his performance in the interview with Dr Jureidini.

    The nature of the ANCOR breaches and the circumstances surrounding the appellant’s release from immigration detention

16. During Dr Jureidini’s interviews the topics of the nature of the ANCOR breaches and the circumstances in which the appellant came to be detained and released from immigration detention were canvassed, as were numerous aspects of the appellant’s background.

17. In essence, it was the appellant’s counsel’s contention that the language that Dr Jureidini used in relation to these two topics demonstrated that he was biased against the appellant.  There was no suggestion that Dr Jureidini had misreported anything that the appellant had said but rather it was submitted that the language that Dr Jureidini adopted evidenced a deliberate attempt to paint the appellant in the worst possible light.

18. Dealing firstly with the ANCOR offences. In 2019 the appellant was charged with the ANCOR offences. The appellant was charged with nine separate offences, a number of which involved him failing to report that he had been in contact with a child (H), that he was obliged to report as a Serious Registrable (Repeat) Offender under s 4 of the Child Sex Offenders Registration Act 2006 (SA). Dr Jureidini dealt with this topic in the following passage of his report:[48]

    [The appellant] gave seemingly contradictory accounts of his reasons for pleading guilty to the most recent round of charges that led to his incarceration. In the first session, he told me this had been to protect [H], the 17 year old girl who was to give evidence against him in court, because he felt she would be damaged by the process. On the second account, he said that it was under legal advice to minimise his sentence.

    In both sessions, we discussed with [the appellant] the allegations of the 17 year old girl, [H], who was to give evidence in court for the prosecution. He explained that they met through church when she was seven and he had befriended [H] and her mother, [K], who has an intellectual disability such that [H] more or less cared for [K] from the age of about 12. This would make her a child who was very vulnerable to exploitation. [The appellant] said that when he was planning a road trip to Bendigo, [K] and [H] insisted on coming. [the appellant] said that he loved [H], who had asked, ‘can I call you Dad’, but there had been no inappropriate behaviour between them.

    (Emphasis added)

    Dr Jureidini was not cross examined on this aspect of his report.

    [48]   Parenting Capacity Assessment Report, 26 May 2020 at 2.

19. Counsel for the appellant submitted that the manner in which the ANCOR breaches were reported by Dr Jureidini would tend to give the reader the impression that the appellant was facing sexual allegations rather than an ANCOR offence.  It follows that to found an allegation of bias, it must be suggested that Dr Jureidini was deliberately attempting to misrepresent the situation.

20. In my view this complaint is entirely without merit.  There is nothing in any of the relevant passages that support a suggestion that Dr Jureidini was either deliberately or inadvertently attempting to mislead.  The passages were factually accurate. The appellant had been charged with offences arising out of his failure to disclose his contact with H.  It is clear that Dr Jureidini’s concerns were not in respect of the conduct that was the subject of the charges, but rather the appellant’s inconsistency, and consequently his failure to take responsibility for his conduct.

21. The second topic relied upon to suggest that Dr Jureidini had a bias against the appellant is Dr Jureidini’s account of what the appellant told him about the circumstances in which the appellant came to be discharged from immigration detention.  In order to make a proper assessment of this submission, it is instructive to look at the manner in which this evidence evolved.

22. In his report Dr Jureidini discussed the appellant being released from jail, having served a term of imprisonment for his sexual offending.  He went on to say:[49]

    He was subsequently placed in Baxter Detention Centre for five months but was released without deportation. He recognises that this was on procedural grounds, rather than that he had a substantial case against being deported.

    [49]   Parenting Capacity Assessment Report, 26 May 2020 at 1.

23. Dr Jureidini gave evidence on this aspect of his report.  In examination-in-chief, he was asked for the basis of that reference.  The following exchange then occurred:[50]

    A.Because he told me that. He told me that his release from Baxter, I can’t remember the exact circumstances but that his release from Baxter was because of some legal technicality rather than because he found - that some court had found in his favour.

    Q.I see. So did you discuss whether or not he had a substantial case against deportation or is that what you’re saying he told you.

    A.He told me that he’d been put into immigration detention and that the reason he’d been released from immigration detention was on some technicality, legal technicality.

    Q.That was the words he used was it.

    A.I couldn’t say for certain those were the words but it’s over a year ago. My best memory is that it was something to that effect.

    [50]   TT448.

24. Counsel for the appellant submitted that the language used by Dr Jureidini in relation to recounting what the appellant told him about the circumstances in which he left immigration detention is suggestive of bias.  It was put:[51]

    The truth of the matter is that the Federal Court found that the appellant had not been afforded procedural fairness in relation to the decision to detain him but this was reported by Dr Jureidini as being due to a legal technicality and not because he had a substantial case. In my submission this use of language, albeit subtle, was to give the impression that the appellant had somehow found a loophole which means that he couldn’t be accountable for his actions.

    Now Dr Jureidini purports to be a specialist forensic psychiatrist who specialises in court reporting. In my submission this is a rather flippant use of the terminology about how the appellant was being released due to a legal technicality. In my submission it’s inaccurate and potentially misleading to a reader. It displays either a substantial misunderstanding of proper legal process or an inherent bias against the appellant.

    [51]   AT3-4.

25. It is my view that any suggestion that an inference of bias could be drawn from Dr Jureidini’s report and evidence on this topic is untenable.  There is no logical basis upon which that inference could be drawn.  This is particularly so when the impugned passages are considered in the broader context of the entirety of Dr Jureidini’s report and evidence. To suggest that in the context of reporting about the nature of the appellant’s attitude towards his sexual offending, that Dr Jureidini has attempted to portray the appellant in a negative light by describing his release from Baxter as “a technicality” is entirely illogical.  Even more so when it is apparent from the evidence that Dr Jureidini was attempting to do no more than convey what the appellant had reported to him. [52]

    [52]   The appellant did not cross examine Dr Jureidini to suggest that the appellant had not said this.

26. Considered individually or in combination, there is nothing about the evidence of Dr Jureidini on these three topics that suggest that he held any bias against the appellant.

    Evidence outside of expertise

27. Dr Jureidini was also criticised on the basis that it was said that he gave evidence which fell out of his area of expertise.

28. It is convenient to commence with the evidence about Dr Jureidini’s qualifications and experience.  Dr Jureidini’s curriculum vitae was tendered during the trial.[53]  That exhibit sets out that at the time of the trial, Dr Jureidini held the positions of Senior Child Psychiatrist, Women’s and Children’s Hospital, Adelaide; Head of the Paediatric Mental Health Training Unit, University of Adelaide; Professor, Disciplines of Psychiatry and Paediatrics, University of Adelaide; Research Leader, Critical and Ethical Mental Health research group, Robinson Research Institute, University of Adelaide; and Visiting Research Scholar, Philosophy Department, University of York, UK (2020). Dr Jureidini obtained his MBBS from the University of Adelaide in 1980 and in 1986 became a Fellow of the Royal Australia and New Zealand College of Psychiatrists (RANZCP).  In 1987, he became an Accredited Child Psychiatrists (RANZCP), with a speciality registration in psychiatry, Medical Board of SA.  Since obtaining these qualifications, Dr Jureidini has held various clinical and teaching roles in the United Kingdom, Canada and Australia specialising in child and adolescence psychiatry.

    [53]   Exhibit CE6.

29. The genesis of the appellant’s complaint about Dr Jureidini’s expertise appears to arise out of some answers provided whilst being cross examined about the literature relating to the assessment of the risk of recidivism.  In particular, research in relation to recidivism that was referred to in the 2004 report of a psychologists employed by the Department of Child Protection, Patricia Rayment and Nicole Bevan.  The relevant evidence of Dr Jureidini was:[54]

    Q.Looking at p.176 of the same book, CE1, his Honour asked a question of Dr Swift just earlier today about the likelihood of recidivism for sexual offending given the passage of time, and Patricia Rayment, Psychologist, on p.176 of CE1, refers to some literature - this is in the third paragraph down, second line - ‘Literature indicates risk of recidivism does not reduce with remoteness from the time of offending’, and it cites Wilson, 2004. Are you familiar with any body of material research or literature that would support that view; that, in effect - or are you familiar with this literature.

    A.No. I mean, I’m certainly not - comment on it.

    Q.That’s outside of your area of expertise.

    A.Yes, I guess so, yes.

    [54]   TT462.

30. Counsel for the appellant submitted that based on this passage of evidence the question of making an assessment of the likelihood of recidivism was beyond Dr Jureidini’s expertise.  Counsel went on to say:[55]

    Whilst Dr Jureidini’s brief was to provide a parenting capacity assessment, in my submission what he really did was express an opinion about the likelihood of the appellant reoffending.

    [55]   AT9-10.

1. That submission reflects a misunderstanding of the role of Dr Jureidini in the process and the nature of the opinion that he provided.  At no stage in his report or evidence did Dr Jureidini provide or attempt to provide an opinion of the likelihood of the appellant reoffending.  Dr Jureidini remained within the confines of the brief that he was given which was to provide information about the suitability of the appellant caring for the child.  In order to do that, Dr Jureidini provided information which he obtained from his interviews with the appellant which included matters like the appellant’s preparedness to take responsibility for his previous conduct.  At the end of the section of the report that relates to the assessment of the appellant, Dr Jureidini makes plain the limits of his role in the matter.[56] That appears in the passage extracted at [43] above.

   [56]   Exhibit CE1 at 116.

2. There is nothing in the report or evidence of Dr Jureidini that supports the submission that he strayed beyond the parameters of his expertise.  

3. The real question is not, however, whether Dr Jureidini gave evidence beyond his expertise, but rather whether the Magistrate misused or misapplied his evidence in any way.  I will come to that when I consider the overarching question of whether the Magistrate fell into error by placing too much or inappropriate weight on the evidence of Dr Jureidini.

   The evidence was at odds with the other expert witnesses.

4. A further submission that counsel for the appellant made in relation to Dr Jureidini was that his evidence was against the weight of the other expert witnesses.  It must follow on that argument that the combined effect of the other evidence was such that the Magistrate was in error in placing any significant weight on Dr Jureidini’s evidence.  Counsel for the appellant summarised this argument in the following terms:[57]

   It’s very clear that Dr Jureidini’s assessment about insight was persuasive to the Magistrate in circumstances where it lacked the dispassionate approach and scientific rigour required of experts engaged in these matters. There is no other relevance to the insight into previous offending could have had but to assess the risk of reoffending because this is not a sentencing matter where insight might go to contrition and remorse and other factors relevant to sentence. In relation to the assessment of risk it can only be relevant to reoffending.

   The recent report by Mr Balfour as well as the opinion of the appellant’s treating psychiatrist, Dr Giannakoureas, his treating psychologist, Mr Fell, along with the historical reports of forensic psychologist Dr Jules Begg, Dr Craig Raeside and forensic psychologist Dr Shawn Sowerbutts who specialises in the assessment of sexual offenders, didn’t put forward the same view as Dr Jureidini. In effect, Dr Jureidini’s view was out on a limb in relation to the risk of reoffending.

   [57]   AT10-11.

5. A particular complaint was made that the Magistrate did not specifically refer to the report of Mr Balfour, even though it was a report that had been recently obtained by the Department to assist in assessing the risk of the appellant reoffending.

6. In order to assess the merit of these complaints, it is necessary to put into context the nature and purpose of the evidence and reports of the various experts.

   2010 witnesses

7. A number of the witnesses whose reports were relied upon had become involved in 2010 when the Department first applied for and obtained a 12 month supervision order in relation to the child.  The starting point for an assessment of the reports of these experts is that there is an obvious temporal disconnect between their opinions and an application made in 2021.

8. I provide a brief overview of the evidence of the witnesses who fall into this category.

   Dr Jules Begg

9. Dr Begg was engaged by the appellant’s solicitor to prepare a report for the 2010 application.  For that purpose, he met with the appellant on one occasion which resulted in a seven-page report.  In that report Dr Begg made plain the limited purpose of the report and, in particular, acknowledged that he did not undertake a parenting capacity assessment.

10. In the account provided by the appellant to Dr Begg, the appellant justified his offending on the basis of the deterioration of his relationship with his wife and the fact that his 14-year-old stepdaughter had taken on more of the parenting responsibilities, resulting in the appellant becoming emotionally attached to her.  It was in this context that he said the sexual offending occurred.  The appellant told Dr Begg that the initial offending had occurred when the child was asleep.  There is now no dispute that the appellant was not honest with Dr Begg in describing that his stepdaughter had been asleep, when the appellant now accepts that she was not.

11. Dr Begg went on to say that the appellant spoke about the impact of his offending on the victim in an appropriate manner, however he went on to observe:[58]

    He is not a fool and I think would have fully appreciated the importance of his comments in determining whether or not he is judged to have benefitted from the Sexual Offenders Program.

    [58]   Exhibit FA1 at 21.

12. Ultimately, Dr Begg did not support the application of the Chief Executive, however in acknowledging “the inherent difficulty that any health professional has in predicting the future”, he expressed the view:[59]

    … it would therefore seem reasonable to require [the appellant] to have at least three monthly assessments with a psychologist to monitor his mental health and in particular assist him in dealing with any stresses that he may encounter in his life.

    [59]   Exhibit FA1 at 23.

13. This recommendation was undoubtedly made on the basis that there remained a risk to the child, however whether that risk was realised would be dependent on the course that the appellant’s life took moving forward.

    Dr Nicole Bevan and Ms Patricia Rayment

14. Dr Bevan and Ms Rayment co-authored a Parenting Capacity Assessment Report in 2010.  At that time Dr Bevan and Ms Rayment were psychologists employed by the Department of Families and Communities, Families SA.  Given that at that stage the child was one year and nine months old, the focus of the assessment was on their interview with the appellant.  Dr Bevan and Ms Rayment also had the opportunity to watch the appellant’s behaviour towards the child during a home visit.  The result of these interactions was a detailed 21-page report.[60]

    [60]   Exhibit CE1 at 160.

15. In that report Dr Bevan and Ms Rayment discussed the appellant’s offending, his familial history and his mental health.  They also provided a comprehensive account of their interview with him.  The most critical aspects of their report appears under the heading of “Summary and Conclusion”.  In that section Dr Bevan and Ms Rayment set out a number of concerns that they had about the appellant’s ability to care for the child and to not sexually offend against her.  That concern was at least in part based on the appellant continuing to minimise and justify his offending.  They observed that:[61]

    [The appellant] also minimised his offending by stressing that he was not biologically related to his victim, and by overtly stating he abused her because she was black and implying he would not abuse white children. Minimising the negative consequences of sexual offending is a method of justification. Engagement in justification indicates a lack of remorse of the offending and is a risk factor for recidivism.

    Although [the appellant] frequently made overt statements that he took responsibility for his offending, and that his actions were wrong, he was unconvincing. He appeared to carefully manage the statements he made during the interview, such that when he made a comment which could be considered to be negative to his case, he almost unfailingly made a counter statement which reiterated his accountability. However, such assertions were contradicted by comments he made throughout the interview, such as numerous statements by [the appellant] which indicated that he considered his stepdaughter to be complicit in the sexual acts.

    [61]   Exhibit CE1 at 176.

16. Dr Bevan and Ms Rayment also expressed concern that during the interview the appellant had indicated that in the past he had the opportunity to sexually abuse other children which he did not take up.  They made the observation that:[62]

    Despite his intention that this statement provide evidence that he would not offend against others, [the appellant’s] comment was concerning as it indicated he had considered inter-familial offending.

    [62]   Exhibit CE1 at 178.

17. Dr Bevan and Ms Rayment went on to conclude that the child was at risk of sexual abuse should she remain in the appellant’s care.  They elaborated:[63]

    [The appellant’s] attitude to the offending indicates that he remains a risk of sexually offending in the future. Further, as [the appellant] is [the child’s] sole carer, if he were to abuse her she would be unlikely to disclose this information as she would not understand its inappropriateness, would fear ramifications such as being removed from her sole attachment figure…

    [63]   Exhibit CE1 at 178.

18. At the conclusion of their report, Dr Bevan and Ms Rayment made the following recommendations:[64]

    [The child] should be placed under Guardianship of the Minister until the age of 18 years and an appropriate long-term placement sought. The viability of a relative care placement, such as with her maternal aunts with whom she has established relationships, should be investigated.

    [The appellant] should be granted contact with [the child] twice weekly. This contact should be supervised by Families SA or an appropriate family member. It is noted that members of [the child’s] paternal family should not be considered appropriate supervisors.

    [64]   Exhibit CE1 at 179.

19. Contrary to what was put by counsel for the appellant, it is apparent from this overview of the Parenting Capacity Assessment Report that Dr Bevan and Ms Rayment were very much ad idem with Dr Jureidini.  In a number of respects their report was expressed in stronger terms and went further in their recommendations than that prepared by Dr Swift and Dr Jureidini.  It is of significance that the concerns about the failure of the appellant to take responsibility and minimise his conduct remained the same 12 years later.

    Mr Shawn Sowerbutts

20. In 2010 Mr Sowerbutts was employed as a psychologist at Owenia House.  He provided a four-page report setting out the appellant’s attendance at treatment sessions provided by that service, then known as the Sexual Offenders Treatment Assistance Program (SOTAP).  The appellant had initially attended there as a voluntary client between December 2000 and ceased contact in June 2001.  He had not completed the program at that time.  The appellant was again referred to the service on 21 March 2005 and with a period of disruption due to his immigration detention, he continued to attend until April 2008.  At that time, it was determined that the appellant had completed the program.

21. In his report, Mr Sowerbutts set out a brief synopsis of the appellant’s history as the appellant had recounted it to him.  There is a single paragraph that deals with the risk of reoffending.  That reads:[65]

    On the basis of these static and more dynamic variables, [the appellant’s] risk of re-offending was regarded as low relative to other adult male sex offenders, and as having been further lowered by treatment.

    (Emphasis added)

    Ms Elaine Smale

    [65]   Exhibit FA1 at 3.

22. In 2010 Ms Smale was a clinical psychologist to whom the appellant had been referred in 2007 in order to assist him with his anxiety.  The appellant continued to intermittently see Ms Smale between 2007 and 2010.  Ms Smale provided two short letters, dated 20 October 2010 and 8 November 2010 that set out some of her interactions with, and observations of the appellant.

23. At the outset of the first letter Ms Smale explained that given that the appellant had been referred to her for treatment of his anxiety, his history of sexual offending was not the focus of their sessions.  She went on to explain that she was not in a position to assess the appellant’s level of risk of reoffending.  She reported that she had in fact advised the appellant to consult a forensic psychologist and request an assessment of his risk of reoffending on the basis that “forensic psychologists are trained specifically in this area and are generally better qualified than clinical psychologists to assess the risk of re-offending”.[66] Ms Smale did however lend some support to the appellant in saying:[67]

    I cannot assess whether [the appellant] is fit to be a parent but I have seen him over a long period of time and I have not observed any behaviour that gave me any cause for concern. Nor has [the appellant] made any comments that concern me.

    2019/2020 witnesses

    [66]   Exhibit FA1 at 7.

    [67]   Exhibit FA1 at 7.

24. The remainder of the experts provided their reports in 2019/2020.

    Mr Richard Balfour

25. Mr Balfour is a clinical psychologist who was requested to prepare a report by the Department for Child Protection in November 2019.  In that report it was requested that he addresses three issues. These were:[68]

    1.Risk pertaining to [the appellant’s] sexual re-offending.

    2.Risk pertaining to [the appellant’s] current offending (i.e. his ANCOR breaches that have resulted in his current incarceration).  Both DCP and ANCOR have no information to suggest that [the appellant] would cease breaching his ANCOR conditions, should he be released from prison.  Additionally, [the appellant] has not been able to demonstrate any insight into how his behaviours have impacted upon his daughter, [the child].

    3.Recommendations as to what level of support and/or programs [Ms S] and [the child] should engage with to bolster their understanding of [the appellant’s] offending (in a developmentally appropriate manner for [the child]), and to increase their knowledge and skills to implement safe and appropriate boundaries. …

    [68]   Exhibit CE1 at 120.

26. In order to prepare his report, Mr Balfour conducted a three-hour interview with the appellant over two days.  As a consequence of those interviews and other background material provided to him, Mr Balfour prepared a 42 page report.  Much of that report is taken up with details of the appellant’s background and history.  There is a particular focus on some of the unusual features of the appellant’s relationship with his mother in which he describes unorthodox acts of intimacy with his mother requiring him to take on a role that appeared more like that of a husband rather than a son.  Mr Balfour reported that the appellant told him that “My father would go away for 1 to 2 weeks; and it was like he wanted to be away.  It was like I was a surrogate husband to my mum”.[69]

    [69]   Exhibit CE1 at 124.

27. Based on the appellant’s account, Mr Balfour described the appellants relationship with his mother in the following terms:[70]

    [The appellant’s] mother then exploited her maternal relationship with him to satisfy her unmet needs for companionship, emotional intimacy, and physical intimacy. She clearly transgressed the appropriate role boundaries between a mother and a son.  She also engaged in inappropriate pseudo-sexualized behaviour with him. His mother engaged in the process of parentification. He became his mother’s surrogate partner and carer. Consequently, she sacrificed his developmental needs for own [sic] benefit. This had led to him developing confusion regarding appropriate role boundaries between a parent and a child, and this has laid the foundation for his later child sex offending behaviour against his 14-year-old stepdaughter.

    [70]   Exhibit CE1 at 150-151.

28. Mr Balfour went on to observe:[71]

    The process by which [the appellant] sexually exploited his 14-year-old stepdaughter was very similar to the circumstances under which his mother exploited him by the parentification of their relationship.

    [71]   Exhibit CE1 at 151.

29. It was the opinion of Mr Balfour that this was cause for significant concern with the appellant behaving in a similar way towards his daughter.  He said:[72]

    I believe the Department of Child Protection’s concerns regarding [the appellant’s] level of sexual risk to his 11-year old daughter are realistic, and warrant a thorough investigation.

    [The appellant’s] sexual offence against his 14-year-old stepdaughter occurred in the context of him coping poorly resulting in the parentification of his relationship with his stepdaughter leading to his sexual offending behaviour.

    The concern is that if [the appellant] psychologically decompensates again in the future, then he may parentize his relationship with his 11 year old daughter, and sexually exploit her to console himself.

    [72]   Exhibit CE1 at 151-152.

30. Despite this, Mr Balfour indicated that he would rate the appellant’s risk of sexual recidivism as being in the low range.  In arriving at that view Mr Balfour relied on factors such as the absence of paedophilic disorder, the period of time since the appellant last sexually offended, his motivation to participate in rehabilitation programs and his demonstrated remorse and victim empathy.

    Dr Angelos Giannakoureas

31. Dr Giannakoureas is a consultant psychiatrist who has been providing the appellant with psychotherapeutic support since June 2020.  Dr Giannakoureas provided four brief reports setting out in a very general nature his dealings with the appellant.  The reports contain little that is relevant to the issues under consideration.  In the first report he does however make the following concession:[73]

    I am not qualified to make a forensic assessment in relation to [the appellant’s] risk to children. Nevertheless, I can say with confidence that there is no evident psychiatric reason contributing to an assessment of increased risk. I opine he poses a low risk to children. I suggest formal assessment of risk and parenting capacity be left to those qualified in such areas.

    (Emphasis added)

    [73]   Exhibit FA1 at 13.

32. I make the observation that it appears to be an extraordinary leap from a finding that there is no evident psychiatric reason for the appellant’s sexual offending to a conclusion or opinion that he poses a low risk to children, particularly when absent an underlying psychiatric condition, the appellant has sexually offended against a child in the past.

33. Dr Giannakoureas further elaborated on the contents of the reports in his evidence.  He confirmed that he had been consulting with the appellant for approximately 18 months, primarily in relation to his anxiety.  It was clear from Dr Giannakoureas’ evidence that he had a good relationship with the appellant, and he had formed the view that the appellant was genuinely remorseful for his sexual offending. 

34. Throughout his evidence Dr Giannakoureas made it plain that the nature of his expertise was as a clinical psychiatrist.  On no less than 10 occasions Dr Giannakoureas told the Court that he was not a forensic psychiatrist and/or that he had no particular expertise in assessing parenting capacity or the risk of recidivism.[74]  Despite this, Dr Giannakoureas maintained and continued in his view that the appellant was at low risk of recidivism.  Whilst this topic was revisited a number of times, the following passages of evidence best encapsulate Dr Giannakoureas’ position:[75]

    Now your colleague asked me what my opinion was and I stated what my opinion was. I personally think that he’s a low risk but then again I’m not the expert in this field, however I’m entitled to an opinion.

    And:[76]

    And I’ve said this to other people, I can only comment on a person, like I can have an opinion right. But as a psychiatrist I can only comment in matters relating to my field. Now, I’m not a parenting expert. I’m not a child psychiatrist, I’m not even a forensic psychiatrist. I’m a general adult psychiatrist. So what people ask me is, is there a mental impairment that would put this person at risk of poor parenting. So, I can only make a call on their mental state and how it affects their parenting. I can’t comment on any other parameter. So, I can give an opinion based on [the appellant’s] mental state and his stability but also on his character that is in my opinion I believe he’s at low risk of re-offending but it’s qualified by parenting is not my thing. So it is for the courts to decide whether that opinion has veracity or not and I totally understand that.

    Dr Jeffrey Bollard

    [74]   TT622, 657, 666, 686, 688, 698, 692, 696, 701, 703, 734, 744.

    [75]   TT692-693.

    [76]   TT696.

1. Dr Bollard is a psychologist to whom the appellant was referred for psychological support in early 2021.  Dr Bollard provided two reports.  Prior to writing the first report in March 2021, he had observed a period of supervised contact between the appellant and the child and, later the same day, participated in a supervised interview with the child.

2. In relation to the supervised contact, Dr Bollard reported that:[77]

   On the basis of my observations of interactions between [the child] and her father, I believe they demonstrated a close and loving emotional bond. They communicated in a natural, spontaneous and caring manner. They showed healthy affection towards each other and genuine care for each other’s wellbeing. I believe that [the appellant] demonstrated that he has a significant role to play in [the child’s] future development and wellbeing.

   He observed no parentified behaviour however he fairly conceded that because he did not witness it does not mean that it did not occur.[78]

   [77]   Exhibit FA3 at 4.

   [78]   TT1024.

3. By the time of the second report dated 8 September 2021, Dr Bollard had met with the appellant for counselling and psychotherapy on 17 occasions. Dr Bollard harboured some doubts about the appellant’s readiness to resume full-time care of the child at that time.  Whilst Dr Bollard accepted that the appellant was well equipped in terms of straightforward parenting skills to care effectively for the child, his concerns related to the appellant’s social judgement and his ability to interpret other people’s behaviour.  Dr Bollard provided an example of what he meant by this:[79]

   Recently, while describing the gross behaviour of his father towards him as a child he was at pains to point out that his father’s behaviour was not sexual, rather it was violent and controlling. From the description given to me by [the appellant], his father’s behaviour was clearly sexual and aggressive, but [the appellant] persisted in trivializing it and re-framing it away from sexualized behaviour.

   [79]   Exhibit FA4 at 5.

4. Whilst Dr Bollard acknowledged that an explanation for this could be an attempt by the appellant to take the focus off his exposure to adult sexualised behaviour during childhood as a marker for future risk factors in his case, he doubted that was the situation.  He expressed the view that it was a reflection of the appellant’s poor judgement and interpretation of this sexualised behaviour.  Dr Bollard opined that the appellant needed to develop more insight into his social and emotional functioning before it would be appropriate for him to take over the full-time care of the child.  On that basis, at that time, Dr Bollard supported a more limited order of 12 months duration.

5. Dr Bollard gave evidence on 14 September 2021, less than a week after he prepared his second report.  In that evidence he expanded upon and reiterated his view that whilst the appellant was not yet ready to take on the child’s care “...the penny’s beginning to drop”.[80] Dr Bollard told the Court that whilst it was early days and there was still a lot more to do, given another 12 months the appellant may be adequately equipped to again take on the full-time parenting of the child.

   Mr Greg Fell

   [80]   TT1028.

6. Mr Fell is a clinical psychologist to whom the appellant was referred for psychological counselling in mid-2020.  Mr Fell provided a very brief report and subsequently gave evidence.  By the time of providing the report, Mr Fell had seen the appellant on approximately 20 occasions over a period of approximately nine months.

7. The three-page report was comprised of a series of questions posed by the appellant’s solicitor followed by Mr Fell’s responses.  One of the questions raised was: “Where possible please comment on whether you have assessed our client’s potential risk to children, and if so what the result of that assessment is”.  Mr Fell provided the following response:[81]

   I am not a forensic psychologist and do not have the expertise to undertake such an assessment.

   However, [the appellant’s] offending occurred more than twenty years ago. At times when we have discussed his offending he as expressed disgust and remorse at his actions, and his manner suggests this is genuine rather than for the sake of appearance. Following his offending he undertook specific training for sex offenders. It is my understanding that [the appellant] would thus constitute a low risk to children.

   [81]   Exhibit FA6 at 3.

8. In evidence Mr Fell made it plain that it was not part of his role to delve into the appellant’s history of offending or attempt to make any sort of assessment of the likelihood of recidivism.  He agreed that his assessment of these matters would not be as in-depth as other professionals involved in the case because that had not been his focus.  The purpose of his sessions with the appellant were for his psychological treatment.  The limits to Mr Fell’s contributions to this topic were summarised in the following cross-examination by counsel for the child:[82]

   [82]   TT1185.

   Q.Yes. Would you agree that your role, as a treating psychologist, in [the appellant’s] case, your expertise in that regard is really directed towards his mental health and keeping him stable and functioning, rather than, I guess you going into the realm of trying to provide an opinion about parenting capacity and his likelihood of parenting his daughter successfully in the future.

   A.Yes.

   Q.So, if I was to suggest to you that, if you were asked by [the appellant] to kind of go a step further and say what would some of the risks be, or how would he deal with some of those risks, they are not really within your expertise, are they.

   A.Risk in terms of?

   Q.Parenting capacity.

   A.No, not really.

   And later:[83]

   Q.Is it fair to say, with respect to you, that your focus has been on treating [the appellant], that is keeping him stable from the two key stressors that you’ve talked about already today, rather than I guess providing what might be described as an independent forensic analysis of him.

   A.Yes, of course.

   Dr Matt Dunbar

   [83]   TT1188.

9. Dr Dunbar is a psychiatrist specialising in child and adolescent mental health.  The child was referred to Dr Dunbar for outpatient psychotherapy on 22 June 2020 by Dr Swift.  Between that date and 30 July 2020 the child attended five sessions with Dr Dunbar before disengaging.  Dr Dunbar provided a report setting out his observations of the child.

10. Dr Dunbar described the child as having a “strongly idealised” view of the appellant in which she disavowed any negative aspect to their relationship.  Based on these sessions Dr Dunbar formed the view that there was a “parentified quality” to the relationship between the child and the appellant.  Having read the report of Dr Swift and Dr Jureidini, Dr Dunbar noted that their description of the child’s relationship with the appellant corresponded closely with the impressions that he formed of the child during the sessions in his clinic.

    Summary of evidence of expert witnesses

11. As can be seen from the summary of the evidence of the experts who provided reports and also gave evidence, it is incorrect to suggest that the evidence of Dr Jureidini was at odds with all of the other witnesses.  To the contrary, there is a significant overlap between those witnesses who were best qualified to provide an opinion to assist the Court in determining the question of the guardianship of the child.  Of particular significance are the similarities between the observations and conclusions of Dr Bevan and Ms Rayment who co-authored the first Parenting Capacity Assessment Report in 2010.  The very concerns expressed by Dr Jureidini and Dr Swift were held by Dr Bevan and Ms Rayment over a decade before.  It could hardly be suggested that Dr Jureidini and presumably Dr Swift went out on a limb of their own when their opinions so closely mirror other experts who had previously undertaken the same role.

12. There is no doubt that there were differences of views and opinions expressed, in particular by witnesses called by the appellant, compared to Dr Jureidini and the other experts relied upon by the respondent.  That much is not surprising.  It is commonplace for experts with different experience and perspectives to express differing views.  It was entirely a matter for the Magistrate to determine, if he could, which evidence he preferred.  The Magistrate having had the benefit of seeing and hearing the witnesses was entitled to accept the evidence of Dr Jureidini over some or even all of the other witnesses.[84]

    [84]   Fox v Percy (2003) 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ.

    Approach adopted by the Magistrate to the evidence of Dr Jureidini

13. It is clear from his judgment that the Magistrate carefully weighed and considered the competing evidence. 

14. The Magistrate adopted the approach of setting out a brief summary of the “material evidence of each witness” who gave evidence.[85]  At the conclusion of each summary, the Magistrate made observations about the view that he had formed of the witness.  With the exceptions of Dr Giannakoureas, Dr Bollard and Mr Fell, the Magistrate found each of the witnesses to be “honest and reliable”.  The Magistrate expressed the view that he found Dr Giannakoureas and Mr Fell to be “honest” witnesses and that Dr Bollard’s evidence was “considered and balanced”.  The Magistrate recognised that there remained a contest between the evidence of Dr Swift and Dr Bollard about whether there was “an adultified” relationship between the appellant and the child, and further between Dr Jureidini as compared to Dr Bollard and Dr Giannakoureas as to whether the appellant had insight into his offending. 

    [85]   No specific reference was made to those witnesses who had provided reports but did not give evidence.

15. The task confronting the Magistrate was no different or complex than any situation in which there are competing opinions of experts.  If those differences cannot be reconciled, it is for the trier of fact to reach a view insofar as they can as to which opinion they prefer.  In this matter the Magistrate correctly identified those matters that remained contentious and set out his reasoning as to how he determined the issues.

16. In relation to the topic of the “adultified” relationship, the Magistrate preferred the evidence of Dr Swift over that of Dr Bollard.  In doing so the Magistrate pointed to Dr Swift’s particular expertise, explanation and basis upon which she arrived at her view.  In comparison, Dr Bollard’s expertise was as a clinical psychologist with limited experience in matters involving children.  Also, whilst Dr Bollard had the opportunity to see some interaction between the appellant and the child, he did not have the benefit of having the same level of discourse with the child as had Dr Swift.

17. In relation to the contest over whether the appellant had insight into his offending, the Magistrate also placed considerable weight on the particular expertise of Dr Jureidini.  The Magistrate summed up the situation in the following terms:[86]

    Dr Jureidini is an experienced and well-credentialled psychiatrist, particularly when it comes to providing opinions on the psychiatric aspects of parenting capacity.  Dr Giannakoureas conceded he is not experienced in conducting parenting capacity assessments and has limited experience in assessing a person’s level of insight.  Dr Bollard conceded that he has not been able to assess the father’s reflective capacity in relation to the offending against his stepdaughter because those matters are yet to be delved into during their sessions.  On the issue of the father’s insight into his offending, which impacts on whether he could re-offend, I prefer the evidence of Dr Jureidini and find the father continues to lack insight into the offending against his stepdaughter.

    [86]   Judgment at 14.

18. It was open for the Magistrate to make this finding.  No error has been demonstrated.

19. The criticisms directed at the opinions expressed by Dr Jureidini on appeal were merely repetition of the arguments rejected by the Magistrate at trial, namely that the opinions of the appellant’s treating doctors should be preferred.  In this regard, it is to be observed that there was nothing in the evidence of Dr Jureidini which establishes that the views expressed by him were incorrect and on that basis should not have been accepted by the Magistrate.  This was not a case in which it was suggested that the evidence of the witnesses was inadmissible or that Dr Jureidini was not qualified to give the evidence.  The complaint goes no higher than, given particular criticisms made of Dr Jureidini’s evidence, it was not open for the Magistrate to prefer his evidence over that of the other witnesses.  For the reasons that I have expressed, I do not accept that submission. 

    Failure to refer to the report of Mr Balfour

20. Counsel for the appellant made a particular complaint about the failure of the Magistrate to make reference to the report of Mr Balfour in his judgment.  It was put that this was a significant omission in that Mr Balfour’s report had been written in 2021 and had been obtained by the Department for the very purpose of these proceedings.  It should be noted however that in his judgment the Magistrate only specifically mentioned those witnesses who gave evidence.  Mr Balfour did not give evidence.  The Magistrate did not traverse through the detail of the many reports and documents that were tendered.  To have done so would have been a significant and unhelpful undertaking, particularly in circumstances in which the issues had become clear and the most important witnesses were those who had given evidence.

21. The question remains as to whether the Magistrate was in error in not giving particular consideration to Mr Balfour’s report.

22. Had that report weighed strongly in favour of the appellant or significantly supported the evidence of his treating psychiatrists there may be some force to that complaint.  However, as has been demonstrated from the summary of the most salient aspects of Mr Balfour’s report, whilst in some respects it was helpful to the applicant, in many others it was of assistance to the respondent’s position.  In such circumstances Mr Balfour’s position would not have advanced the matter much further either for or against the applicant’s case.

    2. The Magistrate place insufficient weight on the desire of the child to live with the appellant

    The statutory scheme

23. In order to properly assess this ground, it is necessary to consider the relevant provisions contained in the Act:

    50—When application can be made for Court orders

    …

    (3)An application for an order under section 53 may be made—

    (a)     if the applicant—

    (i)reasonably suspects that a child or young person is at risk; and

    (ii)is of the opinion that the making of such orders is necessary or appropriate to protect the child or young person from harm, or to allow the exercise of powers or the performance of functions under this Act in respect of the child or young person; or

    …

    ‘Harm’ is defined in s 17 as follows:

    (1)For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect.

    (2)     In this section

    psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.

    ‘Risk’ is defined in s 18 as follows:

    (1)For the purposes of this Act, a child or young person will be taken to be at risk if—

    (a)     the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or

    (b)     there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or

    …

    (3)In 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 their care but also the history of their care and the likely cumulative effect on the child or young person of that history.

24. Section 53 sets out the orders that can be made by the Court with the relevant provisions being as follows:

    (1)If, on an application under this Act, the Court is satisfied that it is appropriate to do so, the Court may make 1 or more of the following orders in relation to a child or young person:

    …

    (e)     an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive;

    …

    (g)     an order placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age;

    …

25. In making an order under the Act, the Court is required to consider the priorities and principles to be applied in the operation of the Act. These include ss 7, 8 and 10 which provide:

    7—Safety of children and young people paramount

    The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.

    8—Other needs of children and young people

    (1)In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:

    (a)     the need to be heard and have their views considered;

    (b)     the need for love and attachment;

    (c)     the need for self-esteem;

    (d)     the need to achieve their full potential.

    (2)To avoid doubt, the requirement under this section applies to the Court.

    (3)Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

    …

    10—Principles of intervention

    (1)The principles of intervention are as follows:

    (a)     decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability);

    (b)     if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances;

    (c)     account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed;

    (d)     in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate.

    (2)Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention.

    (3)However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7.

    (4)To avoid doubt, the requirement under this section applies to the Court.

26. It follows that whilst the Act places importance on the need for a child to be heard and have their views considered, the paramount consideration remains the need to protect children and young people from harm.

27. Despite this, counsel for the appellant maintained that the Magistrate failed to give adequate weight to the child’s views in arriving at the decision to make the order.  He further put that this was unlike many cases which involved younger children who are less able to express themselves and who are likely to be unable to adequately understand the surrounding risk landscape.  By contrast, the child was able to express her views - views which she held very firmly.  Counsel for the appellant extrapolated from the various expert reports a description of the child:[87]

    [The child] is soon to turn 14-years-old, she is articulate and mature and she was described by Dr Bollard as being bright, alert, mature, of average intelligence, of being polite and pleasant and she spoke confidently and was appropriately assertive.  At p.136 Dr Bollard also spoke of the affection and love between the father and daughter, which under the circumstances is hardly surprising, given that before being take into care her father had been her primary caregiver for as long as she could remember.  And having lived with her father all of her life, she has grown into a confident and assertive young person who can and does make her views clear and those views are that she wishes to remain living with her father. 

    [87]   AT27-28.

1. He submitted that it is of significance that the child’s views segue with s 8(3) of the Act which places weight on the desirability of the connection between children and young people with their biological family being maintained.

2. This argument, like the first made by the appellant, also relates to the weight that the Magistrate placed on an aspect of the evidence. As previously stated, weight is not a matter for the appellate Court unless the overall determinative outcome of the decision is so erroneous and unreasonable that it is evident that the discretion miscarried. The Act sets out a hierarchy of matters to be taken into consideration, with the highest priority being the safety of the child. There are then subsequent and subsidiary considerations including the views of the child and the desire to maintain a biological connection. The Act does not go so far as to suggest that the views of the child must be followed, only that they are to be heard and due weight given in accordance with the developmental capacity of the child and the circumstances of the particular matter.

3. That must necessarily be so.  This case is illustrative of why there must be a limit to the weight that can be placed on the views of a child.  It would be a rare matter in which a child has knowledge of all of the information and evidence in front of the Court.  Indeed, in many cases it would be highly inappropriate for that to occur.  To provide aspects of the relevant information to a child would, on occasions, be exposing that child to greater harm.

4. To that end, Dr Swift gave the following evidence at the trial:[88]

   Q.In this case it’s difficult to know exactly what [the child] knows about her father’s situation with the previous sexual offending. I think the view has been taken that it’s not appropriate for her to know everything that’s in the trial books and all the ins and outs of everything. Do you agree with that, that for her to be appraised of everything at the age she is, would be detrimental to her mental health?

   A.Without knowing everything that’d – because I don’t necessarily know all the details either, and I haven’t been privy to all the things in the trial books so it’s a little bit hard to speak to, but yes, generally from what I expect to be in the trial books, I think it’s completely appropriate that an 11 or 12 year old doesn’t have access to it at that age.

   Q.I mean normally – I know that’s a difficult word to use – but normally an 11-year-old child wouldn’t know the criminal history or the ins and outs of sexual criminal history of a parent, would they.

   A. Absolutely.

   [88]   TT407-408.

5. In this case, whilst it was clear that the child knew of some details of the appellant’s past offending, the precise parameters of her knowledge were unclear.  In preparing the Parenting Capacity Assessment Report, Dr Swift canvassed the child’s understanding of the child protection concerns in relation to her relationship with her father.  The child told her: “years ago my dad did bad things, you know to his stepdaughter, and they are worried about me and my welfare”.  She went on to say: “he didn’t do his reporting requirements; they are scared that he did something to someone else”.  When Dr Swift asked whether she understood those concerns, the child responded, “yes and no”, then “kind of its weird” followed by “I don’t think they should be concerned”.

6. Of significance, Dr Dunbar, who conducted five counselling sessions with the child in June and July 2020, made the observation that she was “an anxious and cautiously withheld young girl who emanated a pseudo-maturity well beyond her years”.[89]  He formed the view that “[the child’s] anxiety seemed related more to the question of ‘how to protest being taken away from my father’ rather than making sense of the opposing views of his capacity (for example those presented to her by the Department)”.[90]  In one of these counselling sessions the child explained to Dr Dunbar her understanding of why the Court had seen fit to remove her from her father’s care: “They think they see him as a dangerous person.  But he’s not.  He did something bad to a girl years ago when he was in his thirties.  But that was years ago.  He is in his fifties now!”.[91]

   [89]   Exhibit CE1 at 202.

   [90]   Exhibit CE1 at 202.

   [91]   Exhibit CE1 at 200.

7. The extent of the child’s knowledge or the limitations to that knowledge is central to the child’s ability to make an informed decision about whether it is in her best interest to live with the appellant.  To provide additional information to her about her father’s prior sexual offending would have not only the potential to impact negatively upon her, but also on her relationship with her father.  This highlights why it must be the case that there are limitations to the child’s views in playing a determinative role in whether she is to live with her father.

8. In submissions, counsel for the appellant put to the Court that whilst it is unlikely that the child knew the minutiae of what occurred between the appellant and his stepdaughter, “she certainty understood enough to be live that risk (of sexual offending against her) and to understand that if she noticed that her father was struggling with his mental health or was acting unusually or strangely towards her, that she would be attuned to what might be going on”.[92]  To my mind that yet further illustrates the difficulty with the submissions being put about the child’s ability to accurately measure the risk to which she is exposed.  The very fact that it is suggested that a child is put into a situation in which she needs to remain attuned to her father’s mental health in order to measure whether there is a risk that her father may sexually offend against her is in my view a form of child abuse in itself.

   [92]   AT12.

9. In her submissions on this topic, counsel for the child put to the Court that it could not have been more apparent to everyone who was involved in the earlier proceedings as to what the child’s views were and how strongly she held them.  Counsel for the child took me through in some detail the many occasions on which she and those who instructed her communicated with the child and obtained her views.[93]  Further, subsequent to the appeal hearing counsel for the child provided me with a schedule setting out references in the transcript from the trial to demonstrate that throughout the trial the Court continued to remain alive to the child’s views about the desired outcome of the proceedings.  Further to that, the Magistrate met with the child to give her an opportunity to convey to him in her own words her views about the matter.  In explaining his reasoning for adopting that approach the Magistrate said:[94]

   I just want to meet [the child] and get an impression of her, what her capacity is in terms of what she says, how she’s going, what she wants, because her wishes, even though they’re not the be all and end all, they will- it’s something that I need to put into the mix of things that I need to have regard to, all right? I don’t think it will be a long interview, it will be really just to see how she’s going and get an impression of her. I’m making a decision about the rest of her life so I need to be you know, I think it’s out of respect for [the child], I should speak to her.

   [93]   Counsel for the child submitted that legal practitioners from the Legal Services Commission had contact with child on 13 occasions between October 2019 and March 2021.  

   [94]   TT1648.

10. In his judgment the Magistrate also gave appropriate considerations to the wishes of the child.  He expressly acknowledged that making a long-term order would be contrary to the child’s wishes and indicated that he had taken those wishes into consideration whilst at the same time having “regard to the child’s age; her ability to comprehend the specific risks that arise in this matter; and the submissions made by the child representative”.

11. There is nothing in the judgment to suggest that the Magistrate failed to have regard to, or place appropriate weight on the child’s views and certainty not to the extent that could be suggested that he fell into appellable error.

    3.  The Magistrate failed to properly consider the risk arising from the child being cared for in a residential care environment.

12. It appears to have been accepted by all of the parties involved in the trial and on appeal that residential care accommodation was less than an ideal living arrangement for a 14-year-old child. In his judgment the Magistrate expressly acknowledged that “rotational care may not provide for the child’s need for love and attachment[95] and her need for permanence and stability”.[96]  He also observed that whilst it was likely that there would be a family based placement available for the child, he needed to be conscious of the risk that for a number of reasons the placement may not eventuate or may breakdown, meaning that the child would return to rotational care.

    [95]   Children and Young People (Safety) Act 2017 (SA) s 8(1)(b).

    [96] Children and Young People (Safety) Act 2017 (SA) s 10(1)(a).

13. Counsel for the appellant summarised his argument in relation to this ground as “protection from actual harm versus protection from potential for harm”[97] - the actual harm being that which she is experiencing in residential care as opposed to the potential harm that she may experience as a consequence of living with the appellant.

    [97]   AT29.

14. In submissions counsel for the appellant put that there was evidence from Claire Di Carlo, a senior social worker who worked with the child, that since she was taken into care in 2020, she has lived in three different residential care placements.  Ms Di Carlo expressed the view that residential care is not an ideal option.  She explained that it is for that reason that the Department has a family-based option that is being explored,[98] but until such time that the legal position in relation to guardianship is finally determined, the child will remain in residential care. 

    [98]   TT165 and TT208-209.

15. The difficulty for the appellant with this argument is that beyond a general acceptance of the sorts of problems that may be associated with this form of care, there was very little evidence to suggest that the child was experiencing any specific form of harm whilst in residential care.  The only information on that topic appeared in a letter from Dr Bollard dated 23 March 2021 and the report of Ms Di Carlo and another social worker, Alastair Waples, dated 14 October 2020.  In the letter from Dr Bollard, he provides details of a conversation that he had with the child.  In that conversation the child told him that she lives in residential care, adding “it isn’t the greatest”.  She explained that she felt comfortable with the carers however there were two other residents of the house who “can be hectic” and one resident “causes chaos”.[99] 

    [99]   Exhibit FA3.

16. In the Di Carlo/Waples report it was documented that the child had demonstrated some “concerning behaviours” over the weekend of 23 and 24 August 2020.[100]  That behaviour consisted of the child self-harming by inflicting some “superficial” cuts and grazes on herself.  It was believed that this had come about as the result of encouragement from another child being housed in the same residential facility.  It appears that there was no repetition of this behaviour. 

    [100] Exhibit CE1; Report at 35.

17. Other than this episode there is no further evidence of any specific harm experienced by the child as a result of living in this form of accommodation. 

18. Having said that, I am fully aware of the general undesirability of such a residential arrangement for a child of this age.  So too, however, was the Magistrate - that much is plain from his judgment.  The Magistrate expressly acknowledged it in his reasons:[101] 

    The making of a long-term order gives rise to several risks of harm.  It would necessarily disrupt the relationship between the child and her biological father.  This has the potential to cause her significant harm (both in the short and long term), especially in the context that the father is the only surviving parent and the child has clearly expressed a wish to live with him. …

    [101] Judgment at 15.

19. Despite this, the Magistrate came to the view that he was “satisfied that the risks associated with returning the child to the father’s care outweigh the risks of harm associated with the making of a long-term order”,[102] and in particular:[103]

    … if the child was to live with the father, there is a risk of the circumstances that lead to the offending against his stepdaughter being repeated, thus amplifying the risk that the father will engage in an appropriate relationship with the child.  The gravamen of the consequences to the child if that risk was to materialise would be catastrophic. 

    [102] Judgment at 17.

    [103] Judgment at 17.

20. There is no merit to this submission made by counsel for the appellant.  

    Additional matters arising from the original particulars

21. There are two matters raised in the original particulars that were not covered by the three composite complaints.  I propose to deal with those briefly. 

    The Magistrate erred in considering an extraneous matter, namely the potential outcome of possible proceedings in the Federal Court regarding the appellant’s visa status, and the possible effect of the result of any such proceedings upon the child

22. It was generally accepted by all of those involved in the trial, including expert witnesses and counsel, that it is important that moving forward the child has some stability in her life.  She has now had in excess of three years of uncertainty and turmoil.  In less than four years she will be an adult.  It follows that any matter that results in further unnecessary upheaval in the child’s life was a relevant consideration for the Magistrate.  The prospect of the appellant being taken into immigration detention or being deported falls into this category. 

23. The appellant’s immigration lawyer, Michael Simmons, was called to give evidence at the trial.  It was his evidence that the Department of Home Affairs has initiated action to cancel the appellant’s visa as a consequence of the ANCOR offending.  The appellant’s visa status had first come under consideration after his release from gaol in 2006.  Mr Simmons told the Court that there had been a further Notice of Intention to Consider Cancellation in August 2020, however that had been put on hold until the proceedings in relation to the guardianship of the child had been completed.  It was Mr Simmons’ evidence that whilst the appellant intends to challenge any adverse decision, it is difficult to predict what decision the Department of Home Affairs will make.  The Magistrate summarised the appellant’s immigration status in the following terms:[104]

    … It is therefore difficult to quantify the magnitude of the risk that the father will be deported.  That being said, a Notice of Intent to Cancel the father’s visa has been issued.  The Department for Home Affairs has granted an extension of time for the father to respond until the conclusion of these proceedings.  The father is a convicted child-sex offender.  He has also failed to comply with his ANCOR reporting obligations.  Common sense would suggest there is a very real risk that the Department for Home Affairs will proceed with the action to cancel his visa.  Even if the father successfully challenged that decision, it would take some time for it to proceed through the courts and he could be held in immigration detention.  According to Mr Simmons, he may be detained interstate or “off-shore”.  Putting to one side the ultimate outcome, there would be a period of uncertainty for the child which would impact on her need to have certainty about her future care arrangements. 

    [104] Judgment at 15.

24. The potential threat of deportation looms large for the appellant and by default, his daughter. In such circumstances, it was a relevant consideration for the Magistrate to take into account in determining what is in the best interest of the child. 

    The Magistrate failed to adequately consider the utility and appropriateness of making a short-term order which would have mitigated the risk of harm to the child

25. This complaint was not pursued.  Whilst not expressly abandoned, none of the parties made submissions about this particular.  The reason for that is self-evident.  As mentioned previously, by the time that the judgment was delivered the child had been in a state of uncertainty for nearly two years.  It was accepted by all that regardless of the outcome, the child needed some stability and certainty about what her future living arrangements would be.  Further, if the Magistrate accepted the risk factors that the appellant posed, they were not going to be significantly ameliorated by the imposition of a further short-term order.

    Conclusion

26. None of the matters raised in this appeal, either individually or in combination, establish that the Magistrate was in error in exercising his discretion to place the child under the guardianship of the Chief Executive until she attains the age of 18 years. 

27. The appeal is dismissed.