Minister for Families and Communities v R and A and ORS 2008.  SASC 128.

The child protection Department appealed a ruling by a trial judge to grant a further 12 month order when the Department had applied for the child aged 10 years to be placed in the Guardianship of the Minister until the child was aged 18 years.   Evidence was presented that the child’s parents had abused the child and siblings, were unable to care for and provide for the child and siblings, and were unable to exercise adequate supervision and control over the children.   The child had already been subject to two voluntary custody agreements in a foster home that had broken down due to the child’s aggressive behaviour, and to a 12 month guardianship order.

Departmental experts had given evidence that the best option for the child was placement in long term therapeutic family care, but this was difficult to access.

The Department appealed that the trial judge had not given proper regard to a general rule that it is preferable to issue one order for long term guardianship over a series of temporary orders, and that the judge had given insufficient weight to the expert evidence (weigh evidence).  The trial judge had formed an opinion that if the child were placed on a long term order then there was a risk that the child would languish in an undesirable placement, while a short term order would ensure a review of the child’s circumstances by the Department.

The Appeal Court noted the general rule.  The Appeal Court ruled that the trial judge had erred by making a finding without adequate evidence about the risk that the child would languish in an undesirable placement, and by finding that a short term order would significantly reduce this risk.

The Department’s appeal was allowed.