The risk of harm finding did not have legal consequences that would warrant judicial review
The Supreme Court of South Australia dismissed an application for judicial review of the Department for Child Protection's (DCP) finding that domestic violence posed a risk to his children.
On June 23, 2023, the DCP in South Australia received a report under the Children and Young People (Safety) Act 2017 concerning a child of the applicant. The report suggested the child exhibited signs of potential sexual harm, prompting an assessment and subsequent investigation. The DCP later concluded that domestic violence risk was present due to the applicant’s use of violence and coercive control, which impaired the children’s mother’s ability to make safe choices. However, after determining that the children were safe in their mother's care, the DCP closed the case.
The applicant sought judicial review of the DCP’s decision, challenging the conclusion that domestic violence posed a risk to the children. The respondent, DCP, argued that the applicant's claim had no legal basis, requesting the court to dismiss the application. The DCP maintained that the risk conclusion was not a formal decision but a finding made during an investigation.
In a recent ruling, the Supreme Court of South Australia granted the DCP’s request for summary judgment and dismissed the applicant’s judicial review application. The court determined that the applicant had no reasonable prospects of success in the review.
The court reviewed several documents and submissions, including affidavits and statements from both the applicant and the respondent. Central to the case was the interpretation of the CYPS Act, which requires assessments of children at risk and provides broad discretion for investigations. The court found that the DCP’s assessment and investigation, including interviews and evidence gathering, were consistent with statutory requirements and guidelines outlined in the DCP’s Manual of Practice.
The court noted that the DCP’s conclusion regarding the risk of harm was an opinion formed during the investigation and did not have legal consequences that would warrant judicial review. As such, the court found no statutory power had been exercised that could be subject to review.
The court also emphasised that any potential future reliance on the DCP’s risk finding in other legal contexts could be challenged at that time. The court ruled that since the finding had no immediate legal effect on the applicant or the children and no further actions were taken by the DCP, the review would serve no practical purpose.
