MH In Person v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION [2025] SASC 185

On Appeal from YOUTH COURT OF SOUTH AUSTRALIA (MAGISTRATE GRANT) ACC-22-663 Appellant: MH In Person Respondent: CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION Counsel: DR J LAKE - Solicitor: CROWN SOLICITOR (SA) Interested Party: CW No Attendance Interested Party: CAW No Attendance Interested Party: RJW Counsel: MR G HEMSLEY - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 16/10/2024 File No/s: CIV-24-004472 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MH v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION [2025] SASC 185 Judgment of the Honourable Justice McDonald 13 November 2025 FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CUSTODY - APPEALS 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. On 18 November 2021, RJW was removed from the care of CW pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘the Act’). On 22 November 2021, RJW was placed with foster carers. On 17 January 2022, a three-month interim order was made, placing RJW under the guardianship of the Chief Executive. On 13 April 2022, an application was made for RJW to be placed under the guardianship of the Chief Executive until he turned 18 years old. On 22 April 2024, a Magistrate sitting in the Youth Court made an order that RJW be placed under the guardianship of the Chief Executive of the Department for Child Protection (‘the DCP’) until he attains 18 years of age. The mother of the child, CW, and the appellant, MH, opposed the making of the order. This is an appeal by MH of that decision. -- 1 of 38 -- MH appealed the decision on the following grounds: 1. The respondent failed to disclose relevant information to the Court about the change in the care arrangements with the consequence that the Magistrate failed to take into account a relevant consideration, resulting in a miscarriage of justice; 2. The Magistrate erred in finding that MH lacked insight into the DCP concerns that led to the removal of RJW; 3. The Magistrate failed to place sufficient weight on the delay in MH being provided with RJW’s medical notes and the failure of the DCP to require RJW to undergo an assessment for Fetal Alcohol Spectrum Disorder (‘FASD’). 4. There was an unnecessarily adversarial environment attendant with the proceedings that worked to MH’s disadvantage. The appellant appeals 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 interests of a child) can only be set aside on strictly limited grounds. Accordingly, MH must demonstrate that the Magistrate committed an error of a type that would vitiate the Magistrate’s discretion before the Court is empowered to interfere with the order. Held: 1. MH has not established an appealable error. 2. The appeal is dismissed. Children and Young People (Safety) Act 2017 (SA) s 7, s 8, s 11, s 17, s 28, s 41,s 50, s 53, s 59; Youth Court Act 1993 (SA) s 22, referred to. CDJ v VAJ (1998) 197 CLR 172; De Winter v De Winter (1979) 23 ALR 211; House v King (1936) 55 CLR 499; Lee v Lee (2019) 266 CLR 129; M, L v Minister for Education and Child Development [2018] SASCFC 131, applied. -- 2 of 38 -- MH v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION [2025] SASC 185 Single Judge Appeal McDONALD J. 1 On 22 April 2024, at the conclusion of a trial that ran for eight months, a Magistrate sitting in the Youth Court made an order that the child, RJW, be placed under the guardianship of the Chief Executive of the Department for Child Protection (‘the DCP’) until he attains 18 years of age. The mother of the child, CW, and the appellant, MH, opposed the making of the order. This is an appeal by MH of that decision. Background 2 RJW’s biological parents are CW and CaW. RJW was born on 23 August 2016. CaW has never been involved in the care of RJW. CaW indicated to social workers at James Nash House, where he was being detained at the commencement of proceedings, that he did not wish to participate in the hearing. 3 CW and MH commenced a relationship in 2016, and MH provided care to RJW since he was born. At trial, the Magistrate found that “[t]here appears to have been a not insignificant degree of volatility in the relationship of MH and CW”.1 MH and CW lived together with RJW for much of the relationship however, at some point, MH moved out and obtained his own accommodation. Despite this, the relationship between MH and CW continued, and MH continued to provide RJW with a level of care. The relationship ended at some stage prior to the commencement of the trial, after RJW was removed from CW’s care. 4 On 18 November 2021, RJW was removed from the care of CW pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘the Act’). Initially, there was an attempted kinship placement with RJW’s paternal aunt and uncle. That placement was unsuccessful, in that the carers were unable to meet RJW’s complex needs. On 22 November 2021, RJW was placed with foster carers. At the time of hearing this appeal, he continued to reside with one of those foster carers. This is a topic that I will return to, as it took on some importance on this appeal. The circumstances of RJW’s removal 5 Given some of the issues that have been raised on this appeal, it is necessary to descend in some detail into the circumstances that resulted in the removal of RJW from his mother’s care. 6 Prior to his removal, the DCP had received 19 notifications in relation to the care of RJW. In 2016, six notifications were received relating to neglect, 1 Chief Executive of the Department for Child Protection And CW (Mother), MH (Stepfather), CaW (Father), RJW (Child) [2024] SAYC 6 (‘Magistrate’s Judgment’) at [15]. -- 3 of 38 -- [2025] SASC 185 McDonald J 2 homelessness, substance abuse during pregnancy, poor mental health and lack of engagement with services. In 2020, two notifications were raised concerning physical abuse and failing to collect RJW from childcare on time. Between January 2021 and October 2021, the DCP received a further five notifications regarding the state of the home environment, the failure to collect RJW from childcare, domestic violence, medical neglect of RJW and substance abuse. 7 On 17 October 2021, the DCP received an additional notification which was upgraded to requiring a “within 24 hour” urgent response, detailing further neglect of RJW. Police were required to transport him home from childcare and, upon their arrival, observed CW to be intoxicated, unable to explain where she had been or why she had not collected RJW from childcare. 8 On 17 November 2021, SAPOL conducted an assessment at CW’s home address. The house was observed to be in a state of squalor with no bedding on RJW’s bed, bugs crawling throughout the house, dead mice and live mice running around. One mattress in the house appeared to be in use and was covered with heavily soiled linen. There was no fridge, and a chest freezer contained mouldy food. No fresh food was observed in the house and food scraps were noted on the floor. The toilets and floors were filthy.2 By way of example, there was a baby’s bottle containing milk that had turned black with mould sitting on the cistern of the toilet. I have seen the photographs that were taken of the house. It was not fit for any child to live in. 9 A Severe Domestic Squalor Assessment Scale was completed by SAPOL, and the house was scored 22/30. A score of 12 or more indicates that the inhabitants of the home are living in moderate to severe squalor.3 10 On 18 November 2021, DCP staff attended at the house and made similar observations of the squalid living conditions. MH presented at the home under the influence of drugs and CW presented as erratic, chaotic and scattered in her conversation. The DCP invoked s 41 of the Act and RJW was removed from the premises.4 11 On 24 November 2021, RJW underwent a forensic medical assessment. He was observed to have severe decay of his teeth, spoke in one to two word phrases and was wearing nappies.5 12 On 19 January 2022, RJW was the subject of a child development assessment that was undertaken by a paediatric registrar. He was found to have global developmental delay exhibiting delays in language, self-help skills, and academic and cognitive abilities.6 At the time of the assessment, RJW could not give any 2 Exhibit CE1 at 149-152. 3 Exhibit CE1 at 149. 4 Exhibit CE1 at 34. 5 Exhibit CE1 at 144-145. 6 Exhibit CE1 at 135. -- 4 of 38 -- [2025] SASC 185 McDonald J 3 personal details other than his first name; could not recite the alphabet or count to 10; was unable to read any upper case or lower case letters and was unable to name most of his body parts.7 13 It is to state the obvious to say that this is not the normal presentation of a five year old child. Psychological report of Madelaine Hayter 14 In July 2022, about eight months after RJW’s removal, Madelaine Hayter provided a psychological report in relation to RJW. She also gave evidence at the trial and expanded upon the contents of the report. In the report, Ms Hayter set out her findings and observations under a number of headings. It is convenient to adopt those same headings. Emotional well-being and emotional regulation 15 Ms Hayter assessed that RJW had significant emotional regulation difficulties, which had persisted for some time. He was observed to go from calm to angry within seconds, often in the absence of a known trigger. She said:8 When heightened [RJW] was seen to engage in a range of externalising behaviours, including kicking, yelling, crying, and running away, and he remained heightened for some time despite efforts by his educators to calm him. 16 Ms Hayter noted that although emotional regulation remained a concern for RJW, there had been some improvement since he had come into the care of his foster carers Anne-Marie and Chelsea. He had progressed from three to four violent meltdowns a day, to three to four a week, and had become easier to settle. Ms Hayter expressed some hope “that the longer [RJW] remains in a safe, consistent, nurturing and attuned care environment, the better he will be at adaptively self-regulating”.9 17 Concerns were also noted in relation to RJW’s defiant behaviour, including his difficulty in following instructions, with an apparent fixation on gaining control. 18 It was Ms Hayter’s view that this behaviour had to be considered in the proper context of RJW’s life experiences up until that point in time. She said:10 It is important to consider the aforementioned concerns in the context of [RJW’s] early life experiences, which included exposure to abusive and frightening behaviours, in addition to gross neglect of his basic needs. Early childhood trauma significantly impacts brain development, particularly the development of emotional regulation. During his early years, [RJW] was focussed on safety and survival and had less capacity for skill development, particularly his ability to self-soothe and regulate. [RJW’s] current behavioural difficulties 7 Exhibit CE1 at 134. 8 Exhibit CE1 at 158. 9 Exhibit CE1 at 158. 10 Exhibit CE1 at 158. -- 5 of 38 -- [2025] SASC 185 McDonald J 4 can therefore be perceived as his desperate attempts to keep himself physically and emotionally safe, rather than deliberate or ‘naughty’ behaviour. Communication skills 19 Ms Hayter described RJW’s communication skills as significantly improving since he was placed into foster care. Initially, he could barely talk and communicated through one to two word sentences and gestures. However, by the time of preparing the report, he was at times able to verbally communicate his wants and needs, although his expressive language skills remained delayed. Social and play skills 20 During her observations of RJW, Ms Hayter noted that he utilised immature and violent behaviour when engaging with other children and spent most of the play period either play fighting or chasing other children around the yard. He had limited social awareness or interest. For example, he rarely made eye contact, did not reciprocate conversation and had difficulty gauging others’ feelings or reactions. 21 In considering this behaviour, Ms Hayter explained:11 It is important to recognise that [RJW’s] difficulties with social interactions stem from his early experiences of trauma and abuse. [RJW] was modelled violent and aggressive behaviour as an acceptable mode of interaction and taught that relationships are unsafe and frightening. While he is now in a safe and consistent home, he continues to perceive relationships in this way and is responding to behaviours he perceives as threatening in the only way he knows how. It should be further noted that while his brain continues to feel unsafe (and thus engage in fight or flight behaviours), [RJW] will have less capacity for the higher order thinking that is required for social interaction. As a result, he will be less able to develop and apply social rules and norms, meaning he will continue to struggle socially. I am hopeful that as his trauma slowly resolves, he will be able to develop some of these skills through explicit and repeated teaching and modelling. Academic skills 22 Ms Hayter described an improvement in RJW’s academic skills since he had been removed from the care of his mother. She said that he was beginning to develop some pre-foundational academic skills including counting to 10, recognising letters and words, and writing words by copying. Of significance, Ms Hayter made the observation:12 … that [RJW] has only been at … kindergarten since approximately December 2021, and prior to this, had very few opportunities for learning. It is promising that [RJW] has been able to develop these skills within a relatively short period of time, particularly given he continues to experience a high level of trauma and emotional dysregulation. 11 Exhibit CE1 at 159-160. 12 Exhibit CE1 at 160. -- 6 of 38 -- [2025] SASC 185 McDonald J 5 Self-care skills 23 Ms Hayter also reported that RJW’s self-care skills had significantly improved over the past year, such that he was now able to toilet himself (with some assistance), wash his body, brush his teeth and dress himself. Emotional and behavioural functioning 24 During Ms Hayter’s assessment, RJW continued to experience high levels of distress and dysfunction. This manifested in him displaying disruptive, aggressive, impulsive and anti-social behaviours that put himself and others at risk. 25 As to the causes of this distress and dysfunction, Ms Hayter said:13 It is my assessment that [RJW’s] current emotional and behavioural difficulties are predominantly driven by his past experiences of trauma, in addition to the current uncertainty of his placement … When children have received inconsistent, neglectful and frightening caregiving, they often develop a set of maladaptive behaviours designed to keep themselves physically and emotionally safe. This includes constantly being on the lookout for danger (e.g. scanning the environment), as well as acting instinctively (fight, flight or freeze behaviours) when they believe themselves to be under threat. Therefore, [RJW’s] aggressive, volatile and disruptive behaviour should be conceptualised as his attempts at safety, rather than deliberate malicious or premeditated behaviours. Unfortunately this type of behaviour, referred to as hypervigilance, precludes typical development and functioning, as the child’s main focus is on safety and survival rather than higher order development and growth. 26 It was Ms Hayter’s view that RJW’s presentation highlighted the need for intervention and the high level of support that he will require as he transitions into formal schooling. Care arrangements put in place for RJW - further evidence 27 As one of the grounds of appeal relates to the inadequacy of the information before the Magistrate about the foster care arrangement for RJW, I have had provided to me a number of affidavits setting out the care arrangements that were initially put into place for RJW and how they changed over time leading up to the trial. Although the affidavits were filed by counsel for the Chief Executive, it is MH who seeks to rely upon them for the purpose of this appeal. 28 I will endeavour to summarise the contents of those affidavits. 29 On 17 November 2021, RJW was initially placed with a paternal aunt and uncle. On 22 November 2021, that arrangement came to an end when they informed the DCP that they were not able to provide the level of care that RJW required due to their inexperience in caring for children who had suffered from trauma. It would seem that it was the aunt and uncle who suggested Anne-Marie and Chelsea, who became RJW’s long-term carers. However, given that Anne- Marie and Chelsea were not considered to be a kinship placement, the DCP 13 Exhibit CE1 at 163-164. -- 7 of 38 -- [2025] SASC 185 McDonald J 6 continued to explore whether any alternatives existed for RJW, to reside within his Aboriginal community, to connect him with his family and culture in an endeavour to comply with the Aboriginal and Torres Strait Islander Placement Principles as set out in s 12 of the Act. No such placement was identified.14 30 The Magistrate summarised the information that he had before him about the care arrangement in place for RJW in the following terms:15 This evidence of the relationship between [RJW] and the carers was, generally, extremely positive. Observations of DCP social workers, Ms Hayter and Ms Vekas were that [RJW] and his carers had an extremely positive relationship. Although [RJW] told the child representative he did not love his carer, her observations of their interactions were to the contrary. [RJW] has been in their care since 22 November 2021, which is approaching two and a half years. They are registered and have over eighteen (18) years’ experience in caring for children with trauma and disabilities. [RJW] has made significant gains in terms of emotional regulation, language and social skills and activities of daily living whilst in their care. The placement is available long-term and appears to be stable and meeting the needs of [RJW]. It has been in place for some time, and should not lightly be interrupted, even to attempt re-unification. I am satisfied that [RJW] has been in an excellent placement since 22 November 2021. That placement is available long-term and [RJW] has made significant gains. The relationship between [RJW] and his carers appears to be positive and they are providing a very high level of care to him. … … I am satisfied that [RJW] has been in a stable, caring and otherwise extremely positive environment with his current carers for approximately twenty-nine (29) months. That placement is available long-term. As the Supreme Court has properly held, a long-term order is generally preferable to series of short-term orders. 31 There is no dispute that the information before the Magistrate was out of date and incomplete. 32 By way of background, prior to 2019/2020 the carers, Anne-Marie and Chelsea were in a relationship. Anne-Marie was a registered carer with extensive experience in dealing with children with disabilities. DCP records reflect that from 2010, Chelsea resided within the home and provided occasional care for other children who lived with them. In 2019 or 2020, Anne-Marie and Chelsea separated but continued to live under one roof and provide care to two foster children (one who was by then an adult) residing with them. 33 This was the status of the relationship at the time that RJW was placed in their care. Anne-Marie was a registered carer, and Chelsea’s registration was attached to Anne-Marie’s registration, as they continued to live under the one roof. 14 FDN 9, Affidavit of Jenna Jean Balfour dated 28 August 2024 at [5]. 15 Magistrate’s Judgment at [248]-[251], [257]. -- 8 of 38 -- [2025] SASC 185 McDonald J 7 There was an understanding that Chelsea was to be considered as the primary carer of RJW, and in the event that she was able to obtain separate accommodation it was intended that RJW would remain with her and Anne-Marie would provide respite care. 34 An affidavit has been provided by Dana Laird, a Senior Case Manager within the DCP. She commenced involvement in RJW’s care in March 2023. She reported that during the early stages of her involvement in the case she was advised that Anne-Marie and Chelsea had separated but remained living together, with Chelsea as RJW’s primary carer. 35 On 28 September 2023, during a placement visit, Chelsea informed Ms Laird that she, RJW and the now adult foster child residing in her care would soon be moving into a separate home. 36 Ms Laird deposed that on 31 October 2023, at a family contact meeting, RJW told MH that he had moved into a different house with Chelsea and the adult foster child. Although MH did not dispute that this conversation took place, he said he did not know that it involved any change of carers.16 37 On 1 November 2023, Ms Laird conducted a placement visit at the new home. During that visit, Chelsea informed Ms Laird, that whilst there was no formal respite arrangement in place, RJW frequently spent time with Anne-Marie. 38 In her affidavit, Ms Laird explained the reasons that she had not told MH about this change. She said:17 It is my practice, and as I understand it the Department’s practice, to advise families who remain involved in the children’s lives if there has been a placement change. I did not inform [MH] that Chelsea and [RJW] had moved at this time as it was my view that as Chelsea was the primary carer, the care arrangements therefore had not changed. Additionally, I was aware that [RJW] had shared this news with [MH] at the placement visit on 31 October 2023. 39 In January 2024, Chelsea was approved to be the sole Registered Carer of RJW. 40 On 3 May 2024, Ms Laird spoke with MH who asked about Anne-Marie. Ms Laird advised MH that Chelsea was now RJW’s sole carer, that they no longer lived with Annie-Marie, but that Anne-Marie provided respite care for RJW on weekends. It was MH’s position that this conversation was the first time that he has been made aware of any change in RJW’s living arrangements.18 16 FDN 19, Affidavit of MH dated 11 October 2024 at [1]. 17 FDN 10, Affidavit of Dana Nicole Laird dated 28 August 2024 at [9]. 18 FDN 19, Affidavit of MH dated 11 October 2024 at [2]. -- 9 of 38 -- [2025] SASC 185 McDonald J 8 41 MH contends that the Magistrate was under a similar misapprehension about the care of RJW. I will come back to this topic when I come to deal with the grounds of appeal. 42 Jenna Balfour, a supervisor from the DCP, gave evidence at the trial.19 She has sworn an affidavit in which she deposed that at the time she gave evidence, she understood that RJW resided with two carers: Anne-Marie and Chelsea. She understood that Anne-Marie and Chelsea were separated, living under one roof and sharing the parenting role in relation to RJW. It was her recollection that, at that time, she understood that the plan was that Chelsea would be the primary carer once she was in a position to move out of the home. 43 This information had been made known to Ms Balfour when she had taken over the file in July 2022. She also knew from previous reports on file that between them, the carers had 18 years of experience in caring for children with trauma and disabilities. The Youth Court proceedings 44 On 17 January 2022, a three month interim order was made, placing RJW under the guardianship of the Chief Executive. The Magistrate also found MH to be in loco parentis (effectively the stepfather) and joined him as a party to the application. 45 At the conclusion of the interim order, it would seem that the DCP considered that the parenting concerns remained and were incapable of being addressed by CW and MH in a time frame that met the needs of RJW. Broadly speaking, those concerns were: • The severe squalor of CW’s house; • Drug use by MH and CW; • Mental health issues of MH and CW; • The lack of insight by both parents into the concerns of the DCP; • The general neglect of RJW’s needs and an overall lack of parenting capacity; and • Allegations of inadequate insight into domestic violence concerns. 46 On 13 April 2022, an application was made that RJW be placed under the guardianship of the Chief Executive until he turned 18 years old. 47 The trial commenced on 15 December 2022 and ran for 12 (albeit not consecutive) days. CW attended the trial irregularly. She asked few, if any, 19 6 February 2023. -- 10 of 38 -- [2025] SASC 185 McDonald J 9 questions. She gave evidence but did not attend Court for cross-examination. Whilst CW did not explicitly say what orders she sought, the Magistrate proceeded on the basis that CW disagreed with a long-term order being made, and sought a short-term order with a focus on her being reunited with RJW, during the course of that order. 48 MH was an active participant throughout the trial. He called evidence, gave evidence and cross-examined the Chief Executive’s witnesses. MH sought a further short-term order, with a referral to the Reunification Court, hopeful that he may be appointed as RJW’s guardian. The legislation 49 The Children and Youth People (Safety) Act 2017 (SA) creates a regime under which the Youth Court determines Care and Protection Applications. 50 The paramount consideration under the Act is to ensure that children and young people are protected from harm.20 Harm is defined to be “physical harm or psychological harm (whether caused by an act or omission) and, … includes such harm caused by sexual, physical, mental or emotional abuse or neglect”.21 The harm in question, is any form of harm, not only that which may be caused by a parent. 51 Harm of course can be multifaceted. The act of removing a child from their family can of itself cause harm. This was recognised by the Full Court in M, L v Minister for Education and Child Development,22 when it was observed that “there exists an innate value in the bond between natural parents and their children as they grow older and the denial of that bond may also cause harm”.23 A further form of harm that must be considered is the harm caused to a child when an unsuccessful attempt at reunification takes place. The Court is required to weigh each of these forms of harm and arrive at the best, least harmful, outcome for a child. 52 The Act also recognises that other needs of children should be taken into account in any decision-making process. These are the right of a child to be heard and have their views considered, the need for love and attachment, the need for self-esteem, and the need to achieve their full potential.24 The Act also places particular emphasis on the desirability of maintaining the connection between children and young people, with their biological family.25 53 In considering where to place a child who has been removed from a parent, the Act provides a series of “placement principles”.26 These include that “the 20 Children and Young People (Safety) Act 2017 (SA) s 7. 21 Children and Young People (Safety) Act 2017 (SA) s 17. 22 [2018] SASCFC 131. 23 M, L v Minister for Education and Child Development [2018] SASCFC 131 at [54]. 24 Children and Young People (Safety) Act 2017 (SA) s 8(1). 25 Children and Young People (Safety) Act 2017 (SA) s 8(3). 26 Children and Young People (Safety) Act 2017 (SA) s 11. -- 11 of 38 -- [2025] SASC 185 McDonald J 10 preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship”.27 54 Section 53 invests in the Court a broad discretion to make a number of different orders if satisfied that it is appropriate to do so. These include orders that place a child or young person, for a specified time not exceeding 12 months, under the guardianship of the Chief Executive, and orders placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age. 55 Section 59(2) of the Act also applies in relation to the application made by the Chief Executive. This section provides that in circumstances in which a child or young person is already under the guardianship of the Chief Executive, pursuant to an order of the Court, the onus is on the person who objects to the making of an order to prove that the order should not be made. As RJW was already under the guardianship of the Chief Executive, the onus was on MH to prove that the order sought should not be made. The grounds of appeal 56 MH filed a notice of appeal on 9 May 2024. On 21 May 2021, MH filed a notice amending the grounds upon which he relied. MH was unrepresented throughout the appeal process. No doubt for that reason, and without intending to be in any way critical, the grounds of appeal lack the degree of precision that would be expected from a legal practitioner. As the matter progressed, it became clear that MH made four main complaints about the proceedings and outcome in the lower Court. These are: 1. The respondent failed to disclose relevant information to the Court about the change in the care arrangements with the consequence that the Magistrate failed to take into account a relevant consideration, resulting in a miscarriage of justice. 2. The Magistrate erred in finding that MH lacked insight into the DCP concerns that led to the removal of RJW. 3. The Magistrate failed to place sufficient weight on the delay in MH being provided with RJW’s medical notes and the failure of the DCP to require RJW to undergo an assessment for Fetal Alcohol Spectrum Disorder (‘FASD’). 4. There was an unnecessarily adversarial environment attendant with the proceedings that worked to MH’s disadvantage. 27 Children and Young People (Safety) Act 2017 (SA) s 11(1)(b). -- 12 of 38 -- [2025] SASC 185 McDonald J 11 The nature of the appeal 57 Before dealing with the various grounds of appeal, it is necessary to first say something about the nature of the appeal to be heard in this Court. This is particularly important in the context of this appeal, as MH’s submissions were often a narrative of the general unfairness that he perceived that he has experienced, rather than to focus on whether the Magistrate was in error. 58 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. 59 MH has sought a “12 month reunification order”. The Act does not allow for such an order to be made. The Court can, however, make a short-term order for a period of up to 12 months pursuant to s 53(1)(e) of the Act. Short-term orders require a case plan to be prepared, which must include those matters related to the child’s circumstances as set out in s 28(2) of the Act and this includes setting out a reunification plan. 60 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.28 In this decision, Dixon, Evatt and McTiernan JJ stated:29 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. 61 An error is irrelevant unless it affected the primary Court’s decision.30 28 (1936) 55 CLR 499. 29 House v The King (1936) 55 CLR 499 at 504-505. 30 De Winter v De Winter (1979) 23 ALR 211 at 217. -- 13 of 38 -- [2025] SASC 185 McDonald J 12 62 It is clear from the authorities that the appeal is by way of rehearing.31 In the High Court decision of Lee v Lee,32 Bell, Gageler, Nettle and Edelman JJ stated:33 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) 63 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. 64 That is particularly so in child protection proceedings in which there is often room for two good minds to disagree. 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. 65 A further relevant consideration to be factored in is that the Youth Court is a specialist court. As the Court observed in M, L v Minister for Educational and Child Development:34 The institutional experience of the Youth Court in resolving disputes over the residence and care arrangements which best protect children cannot be overstated. The parens patriae jurisdiction of this Court is rarely invoked and when it is, it is not for the purpose of deciding controversies over the placement and guardianship of children. On the other hand, the judiciary of the Youth Court hear such matters day in and day out. In doing so, they come to obtain a deep understanding of child psychology, the emotional needs of children and of the wide range of very diverse ways in which children can be successfully cared for. Moreover, the judiciary of the Youth Court have the invaluable experience of monitoring child care arrangements over time, of seeing which arrangements work and which do not, and in accumulating insights into the reasons for the successes and breakdowns of child placements. The judiciary of the Youth Court make those assessments dispassionately and independently of the officers and experts of Families SA whose opinions may, through pressure of work, sometimes be mistaken. Finally, the Youth Court also develops an understanding of family dynamics and their effects on children in its criminal jurisdiction. 31 M, L v Minister for Education and Child Development [2018] SASCFC 131. 32 (2019) 266 CLR 129. 33 Lee v Lee (2019) 266 CLR 129 at [55]. 34 [2018] SASCFC 131 at [134]. -- 14 of 38 -- [2025] SASC 185 McDonald J 13 66 The ultimate question arising on this appeal is the appropriateness of the exercise of the discretion undertaken by the Magistrate in making the order. Accordingly, MH must demonstrate that the Magistrate committed an error of a type that would vitiate the Magistrate’s discretion before the Court is empowered to interfere with the order. Should the further evidence be admitted? 67 There is a preliminary issue of whether I exercise my discretion to admit the further evidence. 68 As the Full Court observed in M, L v Minister for Education and Child Development,35 because an appeal provided for by s 22 of the Youth Court Act 1993 (SA) is by way of a rehearing, the appellate Court has the power to receive further evidence. The Court went on to explain:36 … That power is not confined by the restrictive requirement for the admission of fresh evidence on an application for a new trial. In the exercise of that discretion, the critical factor is the subject matter of the proceedings. For that reason, the need for finality in litigation does not necessarily apply especially in cases that concern the welfare of children. The discretion is ‘more ample’. … (Footnote omitted) 69 As to the exercise of that discretion, the Full Court referred to the majority judgment of McHugh, Gummow and Callinan JJ in the High Court decision of CDJ v VAJ,37 which identified the following factors as relevant to a consideration of whether to receive further evidence: • would the evidence have produced a different result if it had been available at trial.38 • is the evidence undisputed or disputed;39 the Court will more readily admit further evidence which is not in dispute and which the court is able to evaluate and take into account in considering the appeal without the necessity of having the proceedings reheard. • is the evidence relevant, admissible and is there any reason for the Court to find that it is not credible.40 35 [2018] SASCFC 131. 36 M, L v Minister for Education and Child Development [2018] SASCFC 131 at [25]. 37 (1998) 197 CLR 172. 38 CDJ v VAJ (1998) 197 CLR 172 at [111]. 39 CDJ v VAJ (1998) 197 CLR 172 at [114]. 40 CDJ v VAJ (1998) 197 CLR 172 at [115]. -- 15 of 38 -- [2025] SASC 185 McDonald J 14 70 As to the question of whether the evidence was available at trial, the majority observed:41 The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. 71 Taking all of these considerations into account, in my view, it is appropriate to admit the further evidence on this appeal. In addition to those matters set out by the High Court, in this case, there is the additional consideration that MH was unrepresented at trial. It was necessary for him to navigate his way through voluminous materials, complex legal principles and court procedures. This is another factor that in the circumstances of this case weights in favour of receiving the further evidence on the appeal. Ground 1 – The respondent failed to disclose relevant information to the Court about the change in the care arrangement with the consequence that the Magistrate failed to take into account a relevant consideration, resulting in a miscarriage of justice 72 It is in relation to this ground that MH seeks to lead the further evidence that I have set out at [27]-[40]. 73 It is of assistance to an assessment of the submissions made in respect of this ground to commence with a consideration of the purpose of the proceedings before the Magistrate. 74 RJW was removed from CW’s care pursuant to s 41 of the Act. That power may be exercised in circumstances in which it is believed that a child is at imminent risk. It therefore follows that the focus at that point in time is on extracting the child from the situation that exposes them to that risk. It does not involve any consideration of the care arrangement that the child is to enter into upon their removal from their parent’s custody. 75 The first order made by the Court on 17 January 2022, was an interim order placing RJW under the guardianship of the Minister for three months. The order was made pursuant to s 53(1)(e) of the Act. There are a couple of observations to be made about s 53. The first is that it provides the Court with the power to make orders as to who is the appropriate legal guardian of a child, and other orders incidental to such a determination. It follows that the focus is on whether it is appropriate for the parent to remain (or be reinstated) as the guardian, or whether 41 CDJ v VAJ (1998) 197 CLR 172 at [116]. -- 16 of 38 -- [2025] SASC 185 McDonald J 15 the child should be placed under the guardianship of the Chief Executive or a specified person or persons, as determined by the Court. 76 There is a division between the roles of the Chief Executive and the courts in relation to the removal of children. It is for the Court to determine the appropriate guardian, whether that be the parent, the Chief Executive or some other person. In the event that the Chief Executive takes on the role of guardian, it is the role of those who work within the DCP to determine the appropriate care arrangements, taking into account all relevant considerations. 77 That must necessarily and logically be so. The decision as to guardianship is a decision about the legal status of a child and those who are to have legal responsibility for them. Although a child may be placed into a care arrangement whilst under the guardianship of the Chief Executive, the Chief Executive retains legal responsibility for the child. If the Court was to have oversight of the care or residential arrangements that follow from the removal of a child, it would be necessary for every change in circumstances to come back before the Court. 78 The focus of the Court on a s 53 application is on whether the parent is an appropriate person to be entrusted with the role of the guardianship of the child. It is therefore matters that impact on that decision, that receive consideration on such an application. As the Magistrate who presided over the trial in this matter observed:42 When the CE makes an application to the Youth Court, there is normally a significant focus on: • the parents’ behaviour; and • the environment that has been created by the parents’ behaviour; and • how this creates a risk of harm for the child and the nature and extent of that risk. 79 Throughout the course of his submissions, MH maintained that during the trial the DCP deliberately misled the Court and portrayed the foster care arrangement as stable, when it in fact was not. I, however, proceed on the basis that to succeed on this ground it is not necessary to arrive at a finding that there was deliberate deception or even negligent conduct on the part of the DCP. It is sufficient if it is established that, for whatever reason, because of the failure by the DCP to disclose the change in the care arrangement, the Magistrate has fallen into error. 80 It was MH’s submission that, as a consequence of the misinformation before the Magistrate, he was deprived of the opportunity to consult with experts about the impact that the change in the carers’ household would have on RJW. He said that had he been aware of the true situation, he would have raised issues about the need for the child to have stability and attachment, which is identified as a relevant 42 Magistrate’s Judgment at [39]. -- 17 of 38 -- [2025] SASC 185 McDonald J 16 consideration under the Act.43 In particular, MH contended that, in the context of the Chief Executive asserting that reunification with MH posed a risk of regression and further trauma to RJW, he should have been entitled to explore whether the separation of RJW and Anne-Marie posed a similar risk of regression. 81 MH relied upon the weight that the Magistrate appeared to place in his reasons on the nature of the foster care that was available for RJW. 82 The issue of the quality of care provided by the foster parents first arose in the Magistrate’s reasons in the context of the Magistrate discussing the evidence of a DCP social worker about whether, in her view, CW or MH could provide the safety, stability and the high level of care that RJW required. The Magistrate accepted that RJW “needs safety and stability now and, indeed, in the future”.44 The Magistrate went onto say “I am satisfied that he is currently receiving that from his carers”.45 83 In his reasons, under the heading “The Current Care Situation of [RJW]”, the Magistrate discussed the foster care placement that he understood was available to RJW. He noted that RJW had been in the care arrangement for almost two and a half years and that the carers were registered and had between them over 18 years’ experience in caring for children with trauma and disabilities. As his Honour:46 [RJW] has made significant gains in terms of emotional regulation, language and social skills and activities of daily living whilst in their care. The placement is available long-term and appears to be stable and meeting the needs of [RJW]. It has been in place for some time, and should not lightly be interrupted, even to attempt re-unification. I am satisfied that [RJW] has been in an excellent placement since 22 November 2021. That placement is available long-term and [RJW] has made significant gains. The relationship between [RJW] and his carers appears to be positive and they are providing a very high level of care to him. 84 In his conclusion, the Magistrate returned to the topic and said:47 In this case, I agree with DCP that the progress of MH has been insufficient to justify the risk of further trauma to [RJW] if a re-unification attempt failed. As I have said, that is particularly the case given [RJW’s] current excellent placement and its long-term availability. 85 Counsel for the Chief Executive accepted that it was unfortunate that the Magistrate had outdated information about the care arrangements, however submitted that the change in the arrangements was not a relevant consideration in the context of the trial, particularly given the nature of that change. The issue in dispute was whether there was a risk of serious harm to RJW if he was returned to 43 Children and Young People (Safety) Act 2017 (SA) s 8(1)(b): This section refers to “love and attachment” not “stability and attachment”. 44 Magistrate’s Judgment at [92]. 45 Magistrate’s Judgment at [92]. 46 Magistrate’s Judgment at [250]-[251]. 47 Magistrate’s Judgment at [271]. -- 18 of 38 -- [2025] SASC 185 McDonald J 17 MH’s care, whether MH had the capacity to provide the care that RJW needed, and whether in all of the circumstances a long-term or short-term order was appropriate. 86 It was the Chief Executive’s submission that it is not uncommon for there to be changes in care arrangements, over which the courts have no oversight or control. That must be so, when it is the role of the Chief Executive, through the DCP, to determine the most appropriate care arrangements for a child once that child is under a guardianship order. As I have said, if placements or care arrangements were central to the judicial decision making process, every time that there was a change it would be necessary to bring the matter back before the court. 87 It was the Chief Executive’s submission that there had in fact been no substantial change in the care arrangements. The arrangement in place was such that the DCP did not regard it as a “change” in the placement. Initially, when RJW had been placed with the foster carers, Chelsea and Anne-Marie were separated but living under the same roof. Chelsea was regarded as his primary carer. By the time of the trial, Chelsea had moved into separate accommodation, taking RJW and the now adult child with her. Anne-Marie continued to have a role in the care for RJW providing respite care on the weekend. Although they now lived separately, Chelsea and Anne-Marie continued to share in caring for RJW. 88 Counsel for the Chief Executive submitted that a change of this nature has to be considered in the context of the extreme neglect and trauma that RJW had suffered as a consequence of the level of care provided by CW and MH. That extreme level of neglect was reflected in the assessment of the risk to the child if returned to MH’s care. 89 It was the Chief Executive’s submission that, in all of the circumstances, the nature of the change in the care arrangement, in the context of the quality of care provided to RJW prior to that, was such that the further evidence would have resulted in no change to the outcome. 90 The child representative made a similar submission. He suggested that the decision of the Magistrate “was not a comparison of the care that was offered. It was an issue of the stepfather’s capacity to care”.48 91 The child representative summarised the role of the Magistrate in the following terms:49 … his Honour’s function is, under s.53, to make the appropriate order with reference to the parents’ behaviour, the environment they have created, the risks of harm and in terms of - and so as to provide the child with certainty, stability and security. 48 FDN 16, Written Submissions of the Child Representative at [44]. 49 T90. -- 19 of 38 -- [2025] SASC 185 McDonald J 18 92 There is considerable force in the submissions made by the Chief Executive and the child representative. 93 I start my consideration of this ground by accepting that the Magistrate should have been provided with the most current information about RJW’s care arrangements, however, as counsel contended, the task before the Magistrate was not to consider competing care options. Under the Act, there is a clear delineation between the roles of the courts and the Chief Executive. The role of the court takes effect at the point that a decision needs to be made as to whether a child is to be removed from their parents. It is unsurprising that under the Act this responsibility is vested in the courts, given the magnitude of a decision to remove a child from their parents’ custody and place them in the care of the state. An application for an order under s 53 of the Act may be made in circumstances in which it is reasonably suspected that a child is at risk, and the person making the application is of the opinion that the making of such orders is necessary or appropriate to protect the child from harm.50 That is therefore the judicial focus in the consideration of the application. 94 There is nothing in the Act to suggest that such a decision is to be contingent upon the quality of the alternative care to be provided. 95 I accept the submission that had the Magistrate had available to him information about the variation in the living arrangement, it would not have impacted on the outcome. Although in his reasons the Magistrate made reference to the quality of the care being received by RJW, this came at the end of his reasons, after the Magistrate had arrived at various conclusions about MH’s ability to provide the level of care required by RJW. Despite these limited references to the foster care arrangement, throughout the entirety of the Magistrate’s reasons, his attention remained focussed, as it should, on whether to make the guardianship order, and make the arrangement to remove RJW from CW’s care ongoing, until he reached 18 years of age. 96 I can understand why MH feels aggrieved about the failure of the Chief Executive to put the most current information before the Court, however I am not prepared to draw the conclusion as he invites me to, that it was deliberate on their part. I find that it was most likely a reflection of their perception of the significance of the “change” that had taken place. 97 In my view, given the issues to be determined, the Magistrate’s decision would not have been different had the relevant information been before the Court. It follows that there has been no miscarriage of justice on the basis that the Magistrate fell into error as he did not have before him the further evidence that I have received on this appeal. 50 Children and Young People (Safety) Act 2017 (SA) s 50(3). -- 20 of 38 -- [2025] SASC 185 McDonald J 19 Ground 2 – The Magistrate erred in finding that MH lacked insight into the DCP concerns that led to the removal of RJW. 98 The Magistrate found that the primary cause of RJW’s trauma symptoms and developmental delays were the neglect and mistreatment that RJW suffered whilst in the care of CW and MH. That finding was clearly supported by the expert evidence. In issue, however, was MH’s failure to understand and accept this. The Magistrate found that this lack of insight and inability to take responsibility for the consequences of his conduct was a critical consideration in determining to make the guardianship order. 99 MH contended that the Magistrate was in error in finding that he lacked the appropriate insight into the consequences of his conduct. 100 It was the submission of the Chief Executive and the child representative that such an inference was well open on the evidence. 101 In order to address this ground it is necessary to set out the details of relevant events that followed RJW’s removal from CW. The events at the Noarlunga DCP office 102 On 21 November 2021, three days after he was removed from his mother’s custody, RJW was involved in a trampoline accident and suffered injuries. These injuries were photographed and documented by Child Protection Services (‘CPS’) on 24 November 2021, and included bruising and abrasions to the forehead and face, and bruising to the legs. I have seen the photographs of these injuries. It is important to note that whilst seeing injuries to the face and head of a child would cause distress for any responsible parent, these injuries were of a type that are relatively common in the context of the rough and tumble of a playground. 103 A supervised meeting was arranged between CW and RJW at the Noarlunga DCP office on 23 November 2021. Although not invited, MH attended at the office for that meeting. He arrived there first, and sat down on a chair in the foyer area. 104 It was the evidence of MH that he was in this position when he saw RJW arrive with the carer – Chelsea. He saw the bruises and injuries to RJW and took him to the front counter to ask what had happened. CW arrived and as the carer was talking to her, three social workers came out of their office. 105 MH gave evidence that one of the social workers took photographs of RJW’s injuries with a phone. MH subsequently sought copies of those photographs as his evidence was that the injuries were more prominent than when RJW was examined by CPS the following day. Not only were the photographs not produced, but there was no record of them in the DCP system. -- 21 of 38 -- [2025] SASC 185 McDonald J 20 106 MH also gave evidence that he thought the carer showed the DCP staff a receipt, which he took to be a medical receipt, however, he conceded that he did not see what the receipt was for. 107 Generally speaking, there was no challenge to MH’s evidence about what happened at the Noarlunga DCP office. The Magistrate found that, in broad terms, MH’s account about these events was unremarkable and plausible. Events since the Noarlunga DCP office incident 108 The Magistrate made various findings about the manner in which MH has endeavoured to improve his circumstances since RJW was removed from the care of CW. 109 The Magistrate accepted the evidence of MH that he had obtained his own accommodation and that it was clean and well maintained. 110 In addition, the Magistrate received a number of positive reports regarding MH’s mental health and drug use. These reports suggested that MH was accepting of his mental health and drug use problems, in particular that MH “displayed knowledge and insight regarding the therapeutic goals … and a clear understanding and strong remorse for the impact of historical substance abuse on his parenting…”.51 111 Based on the various reports that he had received, the Magistrate was satisfied that MH’s mental health was stable and that he had addressed these issues in a positive and pro-active fashion. 112 The Magistrate was even more positive about MH’s drug rehabilitation. He said:52 The evidence was, in my view, overwhelming that MH had ceased drug use for an extended period (now approaching two (2) years) and taken positive and pro-active steps to ensure that he did not re-lapse. If he were to suffer a relapse, he had developed a relapse plan. It was not suggested by any of the witnesses for the CE that the plan, or MH’s steps in overcoming his drug addiction, were anything other than positive. (Footnote omitted) 113 The Magistrate observed that in his experience in the Youth Court jurisdiction, MH had done as well as any other parent that he had encountered in addressing his drug addiction, by remaining drug-free for an extended period and putting arrangements in place to ensure that he stays free from drug use in the future. The Magistrate went so far as to express the view that MH had overcome his drug addiction.53 51 Magistrate’s Judgment at [155]. 52 Magistrate’s Judgment at [162]. 53 Magistrate’s Judgment at [173]. -- 22 of 38 -- [2025] SASC 185 McDonald J 21 114 Against this background of positive developments, the Magistrate considered that the real and most pressing concern was that there was a lack of insight by MH into the child protection concerns of the DCP and, in particular, a failure by him to accept that his parenting deficits had been a significant contributor to the delay and trauma symptoms exhibited by RJW. The Magistrate relied upon a summary provided by the Chef Executive as succinctly setting out those concerns:54 [MH] has a history of failing to appropriately and adequately attend to [RJW’s] needs and has failed to genuinely acknowledge or demonstrate sufficient insight into [RJW’s] delays and previous care experiences, meaning [RJW] is at risk of being exposed to the same deficits in caregiving and care environment in MH’s care. MH’s history of failing to act protectively, particularly with respect to CW’s parenting, and ensuring [RJW’s] safety for the five years he was in their care is significant and MH’s limited insight into these concerns and how they have impacted [RJW] reflect that despite over a year and a half of intervention, MH has been unable to adequately assess this concern. The Magistrate’s finding about MH’s lack of insight 115 The Magistrate had the benefit of seeing MH give evidence and being cross- examined. For that reason, I give considerable weight to the findings that he made about MH. 116 The Magistrate described the assessment of the evidence of MH as an “extremely complex and difficult task”.55 Whilst MH appeared to demonstrate a level of insight in explaining how RJW witnessing an argument between MH and CW would have impacted on him negatively, and how his drug use during his relationship with CW would have impacted his parenting of RJW, there were significant limitations to the depth of that insight. The Magistrate found that MH demonstrated “a dogged and stubborn lack of insight in relation to a number of important matters”.56 117 Of particular concern to the Magistrate, was MH’s continued insistence that the trauma symptoms suffered by RJW arose primarily, if not wholly, from RJW’s removal from his mother’s care and the trampoline accident. The Magistrate found that such a theory “is contrary to common sense”,57 and caused him much concern in considering whether to make the short-term order sought by MH. 118 This disjuncture was apparent across other areas of MH’s evidence. Whilst he made concessions about deficiencies in his parenting (e.g. in relation to the condition of RJW’s teeth), he denied that there had been any significant concerns about RJW’s development or speech before his removal from CW’s care. This was inconsistent with the evidence that RJW was suffering such delays before removal. 54 Magistrate’s Judgment at [204]. 55 Magistrate’s Judgment at [117]. 56 Magistrate’s Judgment at [119]. 57 Magistrate’s Judgment at [119]. -- 23 of 38 -- [2025] SASC 185 McDonald J 22 119 The Magistrate summarised MH’s evidence in the following terms:58 From MH’s perspective, the trauma that [RJW] has suffered and the associated symptoms and behavioural issues arising from this are mainly as a result of his removal and the trampoline fall shortly thereafter. To be fair to MH, he acknowledged that it was appropriate for DCP to intervene when it did and, indeed, had acknowledged this to Ms Vekas when she interviewed him as part of the Parenting Capacity Assessment she completed. Although he acknowledges his drug use, arguing with CW in front of [RJW], squalor of the house and neglect of basic health (such as dental needs) would have caused trauma, his case inevitably asserts that any trauma suffered by these causes was comparatively fleeting and minimal. (Footnotes omitted) 120 The Magistrate found that MH demonstrated a significant lack of insight into the impact of his negative parenting on RJW due to his drug use and addiction, absences for periods of time, failure to intervene earlier on RJW’s behalf, the squalor RJW lived in and MH’s poor mental health during his relationship with CW. 121 I have reviewed the evidence that MH gave at trial. In my view, it was open for the Magistrate to arrive at these findings about the limited level of genuine insight demonstrated by MH. That lack of insight related to both the extent and impact of the neglect suffered by RJW whilst in the care of CW and MH. This was to be compared with his distorted view of the effect of RJW’s removal from that care, in combination with the trampoline accident. 122 I will provide some examples to illustrate the point. 123 Given that MH was unrepresented at the trial, at the outset of his evidence, the Magistrate attempted to provide some guidance as to the topics his evidence should address. He said:59 What, if I can tell you I’m interested in, is where you’re at now in terms of drugs and mental health, your living arrangements, your relationship with [RJW] and your response to the concerns of the department and I think particularly the issue of squalor, of drug use and of the relationship with [CW], as it was then. 124 Instead of focussing on the topics identified by the Magistrate, MH instead chose to commence his evidence by describing the circumstances and impact of the removal of RJW and the trampoline accident. The following passages are extracted from a lengthy narrative on this topic:60 … The removal of [RJW] was traumatic for all three of us involved. … by Tuesday our worst fears were apparent and physical and psychological damage had been done to [RJW]. 58 Magistrate’s Judgment at [127]. 59 T437. 60 T437-440. -- 24 of 38 -- [2025] SASC 185 McDonald J 23 … I also regret not calling the police when [RJW] was brought to the DCP Noarlunga office with those injuries. … … … Two weeks after [RJW’s] injury the state of shock that I was in subsided and I was able to relax and really think about the process of where [RJW] was taken, who he was given to and how he ended up with such injuries. When I realised that there was even the slightest possibility that this incident could have been child abuse I wanted to walk to the Port Adelaide Police Station that night, … I don’t want to keep going on about this situation as its relevance to the case and how I’ve addressed the child protection concerns are completely separate issues although if I wasn’t part of this case an 18-year order would have been passed already and the court wouldn’t have heard anything regarding the fact that [RJW] was injured, let alone sustained the worst injury of his life. 125 MH subsequently moved on to address the concerns raised by the Chief Executive. As to the condition of the house MH explained:61 I’ll just mention the squalor first off. There was about a three or four month deterioration at [CW’s] house about the squalor assessment. You’ll see a housing visit to my property earlier in that year where [RJW] and [CW] are staying at my property for quite an amount of months and when she returned to her property, in combination with the alcohol use that she was using and that, yeah, it really did spiral out of control to an unacceptable level. I can put forth that, you know, we made efforts with the dumpster and we were - we had cleaned all the outside of the house and were going to be cleaning the inside when the department arrived, but it doesn’t matter, it’s still unacceptable for [RJW] to be living in that squalor. 126 Three observations should be made about this evidence. The first is that the extremely poor condition of the house was well beyond what would be expected from a period of three to four months deterioration. In addition, given the condition of the inside of the house, it would suggest extremely poor judgement to have first embarked on cleaning the outside. Finally, had there in fact been efforts to clean up the house, and those efforts resulted in the house being in the state it was when the DCP attended, it speaks even more strongly of the extent of the squalid conditions in which RJW was being cared for. 127 In his evidence, whilst MH acknowledged that RJW’s dental hygiene “wasn’t acceptable”,62 there was then a degree of minimisation when he went on to say that had RJW verbalised any discomfort with his teeth, MH would have taken action. 128 On the topic of speech and global development MH said:63 Before removal [CW] and I took the time specifically to help [RJW] begin to talk and I have fond memories of us counting numbers and letters before [RJW’s] removal. 61 T442. 62 T452. 63 T453. -- 25 of 38 -- [2025] SASC 185 McDonald J 24 129 MH expressed the view that an additional factor that may have contributed to RJW’s speech delay was his aboriginality. He said:64 Another reason why [RJW] wasn’t talking as much as the majority of other children myself and [CW] spoke about was the obvious cultural factor in the broad scope of some Aboriginal children are quieter than most until about the age of five and then they can’t stop talking. [CW] expressed that she had this experience with her older son [J]. I think it is short-minded to think that [RJW] wouldn’t have made the gains he has and that these gains are entirely the product of department intervention. 130 MH went on to explain his view that it was the possible negative impact of a febrile convulsion that RJW experienced as an infant that may have caused the developmental delays. In a somewhat contradictory fashion, MH however suggested that RJW had in fact made “significant gains before his removal in areas such as drawing ability, numbers, letters, helping mum around the house. He loved to help cook and looking after playing with his puppy”.65 131 This description is completely at odds of the description of RJW and the condition of the house at the time of his removal. 132 MH then again reverted to blaming RJW’s behavioural issues on the fact of his removal. He said:66 To see the effect that this removal has had on the kind, caring boy that we raised is utterly disheartening and why I want his best interests to be recognised as being reunified with myself so that this behavioural dysfunction doesn’t further escalate into unknown dangers. 133 In relation to his finding that MH lacked insight into the concerns raised by the Chief Executive, the Magistrate also had regard to the views of Eva Vekas, a clinical psychologist who prepared the parenting capacity report for the Court. 134 In her report, Ms Vekas described RJW’s presentation as consistent with children who have experienced neglect and an absence of a reliable, consistent and attuned caregiving during their formative years (i.e. birth to five years). She explained that children who have been neglected tend to be delayed in language because language development occurs in the context of relationships, and the frequent exposure to conversation and stories. In addressing the manner in which RJW presented she said:67 The social and emotional delays he presents with have also arisen from a deficit of relationships as these skills also develop in the context of moment-to-moment reciprocal interactions between parent and child. [RJW’s] pattern of delays are consistent with this. His indiscriminate behaviour has resulted from a yearning for one-to-one connection with adults. [RJW’s] state of hyper-arousal and challenges with boundaries and routines within the care and school environments were also consistent with exposure to an unsafe and neglectful home environment, in which [RJW] lacked the presence of a consistently 64 T454. 65 T454. 66 T454. 67 Exhibit CE1 at 113. -- 26 of 38 -- [2025] SASC 185 McDonald J 25 available and attuned caregiver who could understand their own mental state as well as the mental state and needs of [RJW]. 135 The Magistrate accepted the opinion of Ms Vekas as to the cause of RJW’s developmental delays and observed that it was consistent with the observations of the carers, educators of RJW, DCP workers and the opinion of Ms Hayter. 136 As part of her parenting assessment, Ms Vekas conducted an interview with MH. She reported a number of positive findings in relation to MH’s capacity to provide care for RJW. These included: • his acknowledgement that it was necessary to remove RJW from CW’s care; • his intellectual functioning did not preclude him from caring for RJW; • It was clear that MH “enjoyed spending time with [RJW]”; • RJW and MH appeared to have a positive connection and clearly loved each other. 137 Despite these positive observations, Ms Vekas still recommended that RJW be placed under the guardianship of the Chief Executive until he turned 18. This recommendation was based on a number of concerns, with the most critical being MH’s lack of insight into the harm that had been caused to RJW by the parenting provided pre removal, and his inability to express empathy for RJW’s experiences of neglect and trauma. 138 Ms Vekas noted that MH demonstrated limited insight into the impacts of substance use on children and parenting, and on RJW’s need for permanency and the presence of consistent, reliable and attuned caregiving, especially in the context of his high developmental needs. 139 There was an inconsistency in the narrative which MH presented to Ms Vekas in that he would acknowledge responsibility for the previous neglect of RJW but then try to downplay or minimise his role or the impact on RJW. By way of example, in relation to RJW’s dental and speech concerns, MH said that he had been following CW’s directions, and at the time was of the belief that it was appropriate; however, in hindsight he “should have been on top of it”. As in his evidence, MH went on to offer to Ms Vekas, as a possible explanation for RJW’s developmental delays, the febrile convulsion that RJW had experienced during infancy. Based on this and other similar responses by MH, Ms Vekas expressed the following view:68 Such lack of insight into the role of his (and [CW’s]) caregiving on [RJW’s] development is of significant concern regarding reunification of [RJW] into [MH’s] care. The assessment indicated [MH] had significant limitations regarding his understanding of 68 Exhibit CE1 at 119. -- 27 of 38 -- [2025] SASC 185 McDonald J 26 child and language development and consequently did not have concerns regarding [RJW’s] development and his (and [CW’s] caregiving). Further, MH’s failure to identify concerns pertaining to [RJW’s] development is a likely consequence of his poor protective capacity and also poses as a contra indicator for reunification of [RJW] into [MH’s] care. 140 In evidence, Ms Vekas was asked directly whether she had turned her mind to whether a 12 month order may be appropriate, given the progress that MH had made. She responded:69 Yes, I did. So in addition to what I’ve already explained, as a psychologist I’m accountable to the Psychological Board of Australia and there are certain conditions on my registration. I work under constant supervision and I discuss every assessment that I do in supervision and I did consider a 12 month order because I do acknowledge the gains or the change that [MH] has made, but what I can’t exclude from this assessment is [RJW] and [RJW’s] very high needs. So there is an urgency from a psychological perspective regarding [RJW], regarding any young people, but regarding [RJW], given his delays. There is an urgency for him in that he needs stability, he needs permanency, he needs a caregiver who is reliable and available now. He cannot wait 12 months and again, just to highlight, I cannot - my assessment indicated that to test that out, to lose sight of [RJW], so to take [RJW] away from the centre of my assessment by testing a 12 month order out in the context of [MH] maintaining abstinence, determining whether he can maintain abstinence in the context of the daily stresses of parenting a very high needs child, the risk was too great. So the risk was too great and the urgency with regards to [RJW’s] care needs is immediate and therefore I ruled out the 12 month order because of that. 141 The Magistrate accepted Ms Vekas’ opinion that in the absence of MH displaying the necessary level of insight, and the immediate requirement for stability and safety for RJW in the context of his very high needs, meant that the risk that an attempt at reunification posed was too great. 142 Having reviewed the relevant evidence and reports, I have come to the clear view that the Magistrate was not in error in finding that MH lacked insight into the DCP concerns that led to the removal of RJW. That lack of insight was compounded by or resulted in MH’s fixation on the impact of the trampoline accident in the context of RJW having only just been removed from CW’s care. 143 The only logical inference based on all of the evidence is that the neglect that RJW suffered whilst cared for by CW and MH was the primary cause of his trauma symptoms and developmental delay. Despite this, throughout his evidence MH continued to direct the blame for the issues confronting RJW primarily on his removal from CW’s care and the trampoline accident. 144 The Magistrate did not err in finding that MH lacked insight into the DCP concerns that led to the removal of RJW. 69 T175. -- 28 of 38 -- [2025] SASC 185 McDonald J 27 Ground 3 – The Magistrate failed to place sufficient weight on the failure of the DCP to require RJW to undertake an assessment for fetal alcohol spectrum disorder (‘FASD’) 145 In order to understand this complaint and the competing arguments, it is necessary to understand the sequence of events that resulted in the perceived need to test RJW for FASD becoming a live issue for MH. 146 As I have mentioned, a possible alternative cause raised by MH for the developmental delays experienced by RJW, was a febrile convulsion that RJW suffered when he was 16 months of age. During the course of evidence, MH raised a concern that because he was not RJW’s guardian, he had been unable to obtain the documentation about the febrile convulsion from the Flinders Hospital. MH submitted that the records were necessary for an expert to consider whether or not the febrile convulsion suffered by RJW could have caused or contributed to his developmental delays. 147 MH had attempted to obtain a copy of the medical notes that related to the relevant hospital admission of RJW through a Freedom of Information (‘FOI’) application. That application took some time to process, but was ultimately refused on the basis that RJW’s guardian (the Chief Executive) did not consent to the release of the documents. 148 In Court, counsel for the Chief Executive indicated that the position of her client was that because there were no restrictions on the use of any medical notes obtained under a FOI application, this was an inappropriate method by which to obtain the records, and that, as the guardian of RJW, the Chief Executive was well within her rights to refuse to consent to the FOI application. 149 It would appear that the Magistrate took an unfavourable view of the position taken by the Chief Executive. The Magistrate observed:70 Whilst it was indeed the case that the CE was the guardian of [RJW] at the relevant time, it is no small matter that CW was [RJW’s] biological mother and MH the long-term step- father and in loco parentis and they always will be. In effect, the position of the CE was that MH, an unrepresented litigant unfamiliar with courts let alone the quite unique Care and Protection jurisdiction, had filed the wrong document in the wrong place at the wrong time and undergone the wrong process to obtain the medical documents of [RJW]. In any event, the CE made it clear that she was not willing to facilitate production of the notes to MH. 150 The Magistrate found it difficult to understand any reasonable or rational basis for the Chief Executive to object to the medical notes being produced to MH, whether through a FOI application or court processes. As a consequence, and in order to prevent any further delays, on 16 May 2023 the Magistrate issued a subpoena for the Flinders Hospital medical notes. 70 Magistrate’s Judgment at [184]-[185]. -- 29 of 38 -- [2025] SASC 185 McDonald J 28 151 The medical notes provided a history of RJW suffering from a febrile convulsion, that was generally consistent with the account given by MH. The notes did not indicate that there was likely to be any permanent harm from the convulsion. 152 On 22 September 2023, MH obtained a report from Associate Professor Michael McDowell, a developmental paediatrician. In that report, he expressed the view that the febrile convulsion “was not a significant cause of brain damage and subsequent development problems for [RJW]”.71 153 This report was forwarded to the Magistrate’s Chambers and the matter was called on for mention on 24 October 2023. By this stage, all of the evidence and closing submissions had been heard. At this hearing, MH sought to reopen his case and raised for the first time his views of the possibility that RJW’s delays could be caused by FASD. The application was opposed by the Chief Executive and the child representative. The Magistrate did not grant the application, however received the report as an exhibit and permitted MH an opportunity to put further information to Associate Professor McDowell, request an additional report, and apply for the matter to be called back on. 154 MH sought a further opinion from Associate Professor McDowell as to what other causes there may be for RJW’s ongoing developmental problems. In an email dated 6 November 2023, Associate Professor McDowell relevantly responded: This email is to follow up our phone conversation. The question I was asked in the medical report was whether an uncomplicated febrile convulsion was likely to be causal of [RJW’s] ongoing developmental problems. I was not asked what was likely to be the cause. As we discussed, if the issue is whether there is a medical cause separate to alleged neglect, it would be my opinion that you have a right to explore that question. On the question of Fetal Alcohol Spectrum Disorder (FASD) the diagnosis requires: 1. A reliable history of significant alcohol usage during pregnancy; 2. A physical examination; and 3. A developmental assessment that identifies at least three areas (e.g. learning, language, ADHD, emotional control, motor skills, social skills) that are below expected to a significant degree (2 standard deviations). FASD is one possible explanation. In my report I mentioned that standard assessment should include consideration of other causes – metabolic, genetic, endocrine and so on. 71 Exhibit FA9 at 7. -- 30 of 38 -- [2025] SASC 185 McDonald J 29 … 155 Associate Professor McDowell went on to note that if neglect is considered as causal, there should be evidence of substantial developmental recovery when the neglect stops. As I have set out, the evidence was that there had been significant improvements in RJW since he had been in foster care. 156 It should be noted that prior to Associate Professor McDowell’s involvement, the issue of testing for FASD had already been raised in Ms Vekas’ parenting capacity report. She concluded in that report:72 If conduct problems persist and [RJW] does not meet the criteria for an intellectual disability, then further exploration and discussion with [CW] around the possibility of Fetal alcohol spectrum disorder (FASD) will be warranted. 157 It follows that the issue of a possible diagnosis of FASD had been raised as a possible further avenue for investigation as early as August 2022. 158 Despite this, at the time of the trial, the Chief Executive maintained the view that at that point in time there was no need for the testing to be done given the improvements that RJW had made and continued to make. That was not to say that the DCP was not going to look into the issue at some later time if necessary. The Magistrate did not agree with the position taken by the Chief Executive that there was no indication or need for FASD testing to occur at that point. 159 On 6 December 2023, the matter was listed for mention. MH again attempted to reopen his case and tender the email correspondence that he had received from Associate Professor McDowell. These applications were opposed by the Chief Executive and child representative. The Magistrate did not grant MH permission to reopen his case, but received Associate Professor McDowell’s email exchange. 160 Taking those additional materials into account, the Magistrate remained of the view that most of the symptoms and trauma related behaviours arose from the poor level of care provided for RJW by MH and CW prior to his removal.73 161 MH makes a number of complaints arising out of his attempts to investigate FASD as a source or contributor to RJW’s developmental delays. It was contended that there was a procedural unfairness created by the earlier failure of the Chief Executive to allow access to relevant medical records, that disadvantaged MH in the presentation of his case. Specifically, had the Chief Executive allowed access to these records at an earlier point in time, MH would have discovered the possibility of FASD as a contributor to RJW’s developmental delays earlier, which would have enabled him to seek expert medical opinions, ask questions of witnesses and present this information to the court. 72 Exhibit CE1 at 122. 73 Magistrate’s Judgment at [268]. -- 31 of 38 -- [2025] SASC 185 McDonald J 30 162 MH summarised the situation:74 The department’s delay in providing these critical medical records inhibited [MH’s] ability to resolve this issue earlier in the trial obstructing the timely exploration of any underlying causes to [RJW’s] developmental delays, including foetal alcohol spectrum disorder. This withholding of information ultimately impaired [MH’s] case as he was unable to fully present evidence on this matter in a manner that might have benefitted both [RJW] and the court’s understanding 163 He suggested that the postponement of these evaluations appeared to have been “a tactic to bolster the department’s case, while depriving [MH] of critical information”.75 164 Alternatively, it was submitted that the DCP should have conducted an FASD assessment, and had they done so, it would have been evident to the Court that there were multiple causes to RJW’s developmental delays. 165 The issues raised by MH can be distilled down into three questions. These are: 1. Did the delay in the receipt of the medical records amount to a procedural unfairness that resulted in a miscarriage of justice? 2. Was the Chief Executive in abrogation of her duty in failing to test RJW for FASD? 3. Did the Magistrate fall into error as a consequence of failing to permit MH to reopen his case? 1. Delay 166 As I have mentioned, the Magistrate was critical of the position that the Chief Executive took in relation to providing MH with a copy of RJW’s medical records. There appears to be some merit in that criticism. 167 Regardless, in due course, the records were provided to MH. MH was able to utilise those records to address the issue that he had consistently raised throughout the course of the trial, that was whether the febrile convulsion had resulted in or contributed to RJW’s developmental delay. 168 Associate Professor McDowell addressed that issue in his report. Of note, nowhere in the report did Associate Professor McDowell raise the issue of FASD. Rather he made the following general observations:76 74 T9. 75 T15. 76 Exhibit FA9 at 7. -- 32 of 38 -- [2025] SASC 185 McDonald J 31 5.5.2 … causation of developmental disorders may arise from the consequences of abuse/neglect as well as medical reasons, both at the same time. Our usual approach to sorting this out is: 5.5.2.1 Medical tests, such as genetic, imaging, metabolic testing, to identify or exclude identifiable medical causes; 5.5.2.2 Developmental treatments to observe response to intervention, the change in developmental rate over time. Where children’s problems are reactive to environmental conditions, more rapid change is usually observed. Where problems arise from biological causation, change is at a rate constrained by these innate medical limitations. 169 It was only after a conversation with MH, the contents of which was not disclosed, that Associate Professor McDowell first made reference to FASD, and whilst he raised it as a possible explanation contributing to RJW’s development delays, he certainly did not advocate that it was, or was even likely, to be the sole cause. 170 The Magistrate received both Associate Professor McDowell’s report and email correspondence. Despite that, the Magistrate found that neglect and trauma underpinned RJW’s development delays. 171 Although the delay in the provision of the medical reports to MH was unfortunate, he did in fact receive them and was in a position to utilise them for the purpose that he sought. The trial was delayed to enable that to occur. The Magistrate received the report and accompanying emails well out of time. At best for MH, the email from Associate Professor McDowell did no more than raise a possibility that FASD was a possible contributor to RJW’s development delays. That was as far as MH’s enquiries could take him. 172 There was no procedural unfairness suffered by MH as a consequence of the delay in access to the medical reports. 2. An abrogation of duty? 173 Throughout the course of this appeal, MH has been highly critical of the failure by the Chief Executive to explore the issue of FASD. He submitted that the Chief Executive has failed in her duty of care to RJW, by delaying an assessment for FASD and, as a consequence, has stalled RJW’s progress and is acting contrary to his best interest. 174 Although the Magistrate agreed with MH that it would have been desirable for RJW to be tested for FASD, that appears to have been based upon a determination of RJW’s future treatment needs. As the Magistrate observed:77 In these circumstances, it is difficult to see why, over sixteen (16) months on from the report of Ms Vekas, DCP has not only failed to have [RJW] assessed for FASD but have 77 Magistrate’s Judgment at [202]. -- 33 of 38 -- [2025] SASC 185 McDonald J 32 indicated no apparent intention of doing so in the foreseeable future. On the material before me, that does not appear to be in the best interests of [RJW]. 175 That is a separate question as to whether, as a consequence of the conduct of the Chief Executive, the Magistrate fell into error in making the long-term order. 176 The Chief Executive was not obliged to have RJW tested for FASD on the basis that MH, or even the Magistrate, formed the view that it would be beneficial. It is the DCP and the qualified practitioners who work in the Department who are best placed to determine the best interests of RJW. That responsibility remains with the DCP throughout their care of RJW. 177 The trial was not a means by which to undertake a roving enquiry into all of those matters that may have impacted on the difficulties experienced by RJW. In the parenting report, Ms Vekas recommended a structured and considered approach to the ongoing treatment of RJW. The pathway forward recommended by Ms Vekas was ongoing engagement with speech pathology and occupational therapy, and therapeutic support for emotional, behavioural and social functioning. In addition, to follow through with recommendations made by the Department for Education, for psychological assessment with regard to emotional, social and behavioural support within the classroom. That would follow with an assessment of RJW’s cognitive and adaptive functioning in 12 months to determine if there have been any further changes. If conduct problems persisted and RJW did not meet the criteria for an intellectual disability, “then further exploration and discussion with [CW] around the possibility of Fetal alcohol spectrum disorder (FASD) will be warranted”.78 178 As set out previously, Ms Vekas remained firm in her view that neglect and an unsafe home environment were causative of RJW’s overall presentation. Whether or not FASD played some role in that mix was a matter that may or may not need to be investigated in the future. 179 To date, there remains no evidence about whether RJW has FASD79 and, if so, what impact, if any, it has had on his ongoing developmental delays. Such a suggestion is speculative. 180 There is no merit to the argument that the Chief Executive abrogated in her duty by failing to have RJW tested for FASD. It follows that there is no basis for the contention that the trial miscarried or that the Magistrate fell into error as a consequence. 3. Did the Magistrate fall into error as a consequence of not permitting MH to reopen his case? 181 In order for MH to succeed on this ground it must be established that MH was deprived of an opportunity to put material before the court, which resulted in 78 Exhibit CE1 at 122. 79 This was most recently confirmed in an email from MH on 14 November 2024. -- 34 of 38 -- [2025] SASC 185 McDonald J 33 the Magistrate falling into error in making the guardianship order. In the context of a complaint about a lack of testing for FASD, that must mean that MH was deprived of an opportunity to put forward an alternative explanation for RJW’s developmental delays, for the neglect and trauma caused by the manner of his care in early childhood. Although the Magistrate did not permit MH to reopen his case, he received Associate Professor McDowell’s report and email. The Magistrate also had the reference to possible future testing for FASD in Ms Vekas’ report. 182 It is unclear what more MH could have put before the court had his application to reopen his case been successful, given that RJW has not been diagnosed with FASD. 183 The Magistrate was clearly aware of the criticisms made by MH about the failure of the Chief Executive to test for the disorder. The Magistrate agreed with the desirability for such testing to take place. It is clear from the Magistrate’s reasons that he was of the view, however, that a diagnosis of this nature was not going to impact upon the expert evidence that he had already heard about the conditions in which RJW had been brought up in and the impact that the neglect and trauma had on him. 184 The developmental delays did not sit in a vacuum. They were observed in the context of numerous notifications about various forms of neglect to the DCP over a number of years. The delays were observed against the backdrop of a child who had experienced extreme adversity, lived in squalor, and was cared for by adults with complex mental health and addiction issues. The delays were observed in conjunction with a failure to toilet train or maintain the dental hygiene of the child. 185 Whilst a diagnosis of FASD may have added to the complexities of the circumstances confronting RJW, to suggest that it would offer an alternative explanation to the extreme neglect and depravity that he had suffered as an infant was highly unlikely. 186 In addition, there was clear evidence of improvements in RJW’s toilet training, speech, emotional regulation, socialisation, literacy, and self-expression after he was placed in foster care. All of which would support a finding that the central cause of the issues faced by RJW was the neglect and trauma he experienced in the home environment. 187 Taking into account the inability of MH to demonstrate what additional evidence he would have put before the Court had he been permitted to reopen his case, and the significant body of evidence that supports the conclusion that RJW’s developmental delays were primarily attributable to the failure to receive proper care as a child, I find that there is no merit to this ground of appeal. -- 35 of 38 -- [2025] SASC 185 McDonald J 34 Ground 4 – Was there an unnecessarily adversarial environment attendant with the proceedings that worked to MH’s disadvantage? 188 There was no dispute between the parties that any litigation, particularly that involving the removal of a child, will have an adversarial component. MH contended, however, that the DCP and/or the Chief Executive intentionally created an adversarial environment designed to disadvantage him in the court proceedings. Central to that submission are the circumstances surrounding the trampoline accident. MH summarised the circumstances that resulted in what he describes as the “adversarial environment” as follows:80 It is important to outline what has caused this Adversarial environment in this case. It is [MH’s] position in this appeal that the Adversarial environment has been initially created by the way in which the Department have handled and presented [RJW] sustaining a trampoline injury sustained within four days of his initial removal. As well as the way in which [RJW] was presented to [MH] and [CW] at the Noarlunga DCP office on the 23rd of November 2021 and the continued lack of transparency in relation to photographs that have been proven beyond the balance or probabilities to have occurred but not presented or the lack of production of any physical evidence supporting the department’s denial of the photographic evidence. 189 It is MH’s submission that a number of inferences can be drawn from the events at the Noarlunga DCP office. These are: • That the presentation of RJW in an injured state without advising MH or CW in advance, was done to provoke the possibility of an aggressive reaction. • That the failure of the DCP to produce the photographs taken of RJW indicates that there has been a deliberate effort to minimise the extent of RJW’s injuries. • That there was a deliberate attempt to orchestrate an “argument” between CW and MH at the meeting, so that it could then be used against MH. • That the DCP have compounded the situation by continuing in their refusal to produce the photographs during the course of the trial which “has resulted in disadvantages to [MH’s] evidence in relation to his insight into trauma being hindered by the effort and time [MH] had devoted to proving that photographs were taken of [RJW] but deleted by the department”.81 80 FDN 13, Written Submissions of MH at [2]. 81 FDN 13, Written Submissions of MH at [7]. -- 36 of 38 -- [2025] SASC 185 McDonald J 35 190 The Magistrate accepted the evidence of MH about the events that took place at the Noarlunga DCP office, in particular that a social worker took photographs of RJW’s injuries. As the Magistrate observed:82 I would be wholly unsurprised if (and would probably expect) DCP social workers documented evidence of injuries sustained by children under the guardianship of the CE. 191 The Magistrate was not however prepared to draw the inference sought by MH from the failure to produce the photographs. His Honour concluded:83 Whilst I am satisfied by way of the evidence of MH on the balance of probabilities that photographs were taken by social workers of [RJW’s] injuries, I am not satisfied that, even if they were available for CPS to consider that the conclusion of that report would have been any different. I am unable to say why such photos were not on the C3MS database and make no finding in that regard. 192 The Magistrate’s disinclination to draw the adverse inferences sought by MH about the failure to produce the photographs, was no doubt, at least in part, because of the obvious and reasonable explanations for the failure to have uploaded the photographs on the database. 193 The Magistrate did however raise some concerns about the mindset that MH appeared to have developed towards the DCP. He observed:84 … [MH] has some extremely entrenched views about DCP and the social workers involved in this file that have, in my view, skewed his recollection and perspective over time. It is most unfortunate that this is so, because it is necessary, regardless of the outcome of this application, for MH to work with DCP for the foreseeable future. 194 The Magistrate went on to elaborate:85 Where a parent denies certain behaviours there is a risk of DCP and the parent becoming locked into what amounts to a form of ‘trench warfare’. DCP requires the parent to acknowledge the behaviour to demonstrate insight. The parent is adamant that behaviour did not occur, and thus, to DCP, lack insight into the parenting concerns. Once the parties are in this situation for any length of time, it is rare for there to be a successful outcome as they are locked into contrary positions. In my view, this is what has occurred in this matter. MH has reached a very firm and negative view about how he has been treated by DCP in this matter. … 195 Contrary to what has been put by MH, the Magistrate appears to have arrived at a view that it was MH who had taken a particularly adversarial stance in the proceedings. 82 Magistrate’s Judgment at [233]. 83 Magistrate’s Judgment at [241]. 84 Magistrate’s Judgment at [126]. 85 Magistrate’s Judgment at [213]-[214]. -- 37 of 38 -- [2025] SASC 185 McDonald J 36 196 It was not only open for the Magistrate to make these findings on the evidence, but on my reading of the transcript, it was the only logical conclusion. The manifestation of the adversarial environment 197 In his submission, MH outlined a number of complaints which related to the manner in which the Chief Executive and the DCP conducted the case, that he claimed resulted in unfairness to him. In effect, he appeared to argue that this unnecessarily adversarial environment impacted on his ability to receive a fair hearing. 198 There is considerable overlap between this ground of appeal and the other complaints raised by MH in support of the other grounds of appeal. In particular, that the adversarial environment that MH alleges was created by the DCP had the following impact on the trial: • It affected the Magistrate’s objective evaluation of MH’s insight into RJW’s trauma (ground 2). • It resulted in the DCP failing to disclose the charged status of the foster- care arrangement (ground 1). • It resulted in the DCP delaying the provision of the medical notes and failing to test RJW for FASD (ground 3). 199 I have considered each of these complaints in the context of the relevant ground of appeal. As I have said, in my view, none of the grounds have merit. Conclusion 200 Despite the number of matters raised and complaints made, MH has not established an appealable error. 201 I dismiss the appeal. -- 38 of 38 --