A Parent v Chief Executive of the Department for Child Protection - [2024] SASCA 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
A PARENT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2024] SASCA 124
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
24 October 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
In November 2021, a magistrate of the Youth Court made an order placing the applicant’s daughter under the guardianship of the respondent until she attains the age of 18 years. The father appealed the Magistrate’s decision to this Court. In February 2022, a single judge of this Court dismissed that appeal.
The applicant seeks an extension of time and leave to appeal to the Court of Appeal.

Held (per the Court), refusing the applications for an extension of the time within which to appeal and leave to appeal:
1.Given the lack of any apparent merit in the proposed appeal, the lengthy delay in seeking leave to appeal, the lack of any adequate explanation for that delay, and the significant interest in finality, the interests of justice do not favour this Court granting an extension of time; and
2.In circumstances where there is no merit in the proposed appeal, the interests of justice do not favour a grant of leave to appeal.

Children and Young People (Safety) Act 2017 (SA) ss 8(1), 41, 53(1)(g), 55, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2023] SASCA 101; Brackenridge v Bendigo and Adelaide Bank Ltd (No 2) [2022] SASCA 16; Gallo v Dawson (1990) 93 ALR 479; Kowalski v Sim [2019] SASCFC 96; Sali v SPC Ltd (1993) 116 ALR 625; Ulowski v Miller [1968] SASR 277, considered.

A PARENT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2024] SASCA 124
Court of Appeal – Civil: Doyle and David JJA

THE COURT: In November 2021, a magistrate of the Youth Court made an order placing the applicant’s daughter under the guardianship of the respondent until she attains the age of 18 years. The order was made pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (‘the CYPS Act’).
For confidentiality reasons, we shall refer to the child as E, and her parents as ‘the mother’ and ‘the father’.
The father appealed the Magistrate’s decision to this Court. In February 2022, a single judge of this Court dismissed that appeal.
The father now seeks an extension of time and leave to appeal to the Court of Appeal.
For the reasons which follow, the applications for an extension of time and leave to appeal should both be refused.
Background
E was born on 21 February 2018 and so is currently six years of age. The mother and the father had not been in a relationship for long when E was born, and that relationship came to an end in about July 2018.
E was removed from the mother’s care on 11 April 2020, pursuant to s 41 of the CYPS Act. This occurred following a total of 49 notifications received by the Department for Child Protection, mostly concerning the mother’s mental health, but with some relating to methamphetamine use, and alleged violence or threats by the father.
E was two years old when she was removed from the mother’s care. She was placed with foster carers, Mr and Mrs W, who also care for an older child of the mother (the half-sibling of E). This living arrangement has continued from 11 April 2020 through to the present.
In June 2020, the Youth Court made an order placing E under the guardianship of the Chief Executive of the Department for a period of three months. This order was made with the consent of the parties.
In late September 2019, a magistrate issued an interim no-contact domestic violence order (‘the DVIO’) against the father, naming the mother as the protected person. The DVIO was confirmed in December 2020. That Magistrate made a considered decision not to name E as a protected person in this order.
In September 2020, the Chief Executive had issued an application in the Youth Court for E to be placed under the guardianship of the Chief Executive until she attains the age of 18 years. The trial of this application commenced before a magistrate on 11 February 2021, and continued over several days on 12 May 2021, 16 to 18 August 2021 and 7 October 2021.
In November 2021, the Magistrate published his reasons for making the order sought by the Chief Executive, namely that E be placed under the guardianship of the Chief Executive until she attains the age of 18 years.
The Magistrate’s reasons
The Magistrate provided detailed reasons for his decision, comprising 73 paragraphs.
The Magistrate commenced by explaining that the trial had covered a range of issues, including not only the suitability of the mother and the father as carers, the relationship E had formed with her current carers (Mr and Mrs W), and the likely risk of harm to E from interrupting that relationship, but also various grievances of both the mother and the father about the child protection system and the way the Department had dealt with them.
The Chief Executive called evidence from Ms Robertson (a social worker employed by the Department who was involved with the family, and provided several reports), Dr Begg (a forensic psychiatrist who assessed the father, and provided two reports) and Ms Hunt (a psychologist employed by the Department who conducted parenting assessments in relation to the mother, and provided two reports).
The mother was represented at the trial, gave evidence herself, and also called evidence from Dr White (a forensic psychologist). The Magistrate described the mother’s case as focussing upon the progress she had made in addressing certain of the child protection concerns identified by the Department, complaining about unfairness, and raising questions about the care being provided by Mr and Mrs W. Through her counsel, she invited the Magistrate to consider making only a short-term guardianship order to enable her to further address the concerns about her ability to care for E, and with a view to returning E to her care.
The father was not legally represented at the trial. He tendered numerous documents, called his sister to give evidence, and also gave oral evidence himself. The Magistrate described his evidence as relating to several grievances he had with the way the Department and other authorities had dealt with him. His case was that, with the support of his family, he could provide safe and appropriate care for E.
E was represented at trial. Her representative supported the Chief Executive’s case for the long-term guardianship order sought.
The Magistrate commenced his analysis by providing a summary of the relevant background and context, which he said were not in dispute. This included reference to the mother’s relationships with the father, and with her previous partners (to whom she had four other children, also no longer in her care), which the Magistrate described as marked by domestic violence and drug use. It included references to the 49 notifications received by the Department in relation to E’s care, relating to not only the mother’s mental health but also drug abuse and violence or threats from the father.
The Magistrate identified two arguments for making a long-term guardianship order. The first related to the risk of harm to E from rupturing the attachment she had developed with her current carers. His Honour described the evidence concerning this issue as ‘compelling’, and ultimately determinative of the case. The second related to the unviability of reunification of E into the care of either the mother or the father, given their limited progress in addressing issues around their respective capacities to properly care for E. His Honour described the evidence as to the parents’ limited capacity to care for E as also ‘quite compelling’.
The Magistrate next undertook a detailed summary and analysis of the evidence in relation to the ‘attachment issue’. This was followed by a summary and analysis of the evidence in relation to the mother’s capacity to parent E, and some other less significant issues raised by the mother.
The Magistrate next considered the father’s capacity to parent E. His Honour explained that an aspect of the Chief Executive’s case was that the father’s inability to regulate his emotions, and his violent and aggressive behaviour, precluded him from being able to parent E. It was said to prevent him from providing an appropriately safe, and emotionally regulated, environment for E. In support of this, reliance was placed upon evidence of the father having threatened Departmental workers. The Magistrate agreed that the father’s evidence, and his presentation and demeanour in the proceedings more generally, also demonstrated that he had very serious difficulties regulating his emotions. Reference was also made to the father’s drug abuse.
The Magistrate made reference to Dr Begg’s evidence to the effect that, whilst not suffering from any significant mental illness, the father presented in a very distressed and disordered state, which Dr Begg considered was attributable to the father’s difficulty in coming to terms with the loss of his daughter. The Magistrate also made reference to evidence to the effect that the father had been consulting a psychologist, Mr Balfour, and had begun to make some progress in regulating his emotions.
Whilst the father did not acknowledge his recent drug use in his sessions with Dr Begg, the Magistrate noted evidence that was contrary to his claimed recent abstinence. He said that this was an issue the father would need to address if he wanted to be a meaningful part of E’s life.
The Magistrate addressed some of the father’s grievances about his treatment by the Department. These were initially centred around the Department’s refusal to allow him to have contact with E. The father believed that this related to an incorrect assumption by the Department that the DVIO taken out against him by the mother named not only the mother as a protected person, but also E. The Magistrate described this grievance as well founded; accepting that the Department had initially proceeded on this mistaken assumption. However, the Magistrate went on to observe that this had motivated the father’s aggressive approach to the Department, which included ‘ugly and alarming threats’ and an instance of property damage. His Honour observed that the father’s approach had not helped his cause; it had made meaningful communication impossible.
The father’s grievances also included a complaint that the Department had not properly engaged with his family, despite his suggestions that, with the help of his family, he could care for E. The Magistrate said he was unable to determine why the Department had not made contact with the father’s wider family.
The Magistrate concluded his reasons with a summary of his operative reasoning. He described the matter as requiring consideration of competing risks of harm. On the one hand, it was appropriate to acknowledge the parents’ feelings of injustice, the child’s right to remain connected with her family, and the consequential risk of harm if deprived of this opportunity. On the other hand, the evidence established the importance of secure attachments formed by an infant with their primary caregivers during their active attachment phase; and that interference with this can have a profound negative impact on a child’s development. Rupturing an attachment will almost certainly cause significant emotional and psychological harm to a child. The importance of attachment is specifically acknowledged in s 8(1) of the CYPS Act. For parents whose infant child is taken from their care, there is often a relatively narrow window of opportunity for them to address parenting concerns before the return of their child to their care would involve rupturing a newly formed attachment. The CYPS Act implicitly recognises this by requiring timely decisions and actions. In resolving these matters the paramount concern is the need to protect children from harm.
The Magistrate explained that E was removed from the care of the mother when she was only about five months into her active attachment phase. The relationship between E and the mother was not a healthy attachment. His Honour said that E was then fortunate to have been immediately placed with very good and loving foster carers. Departmental social workers, after consultation with an experienced psychologist (Ms Hunt) and psychiatrist (Dr Begg), assessed on valid grounds that the prospects of reunification of E into the care of either the mother or the father was unsafe. During the period that followed, not only did E form an attachment with her foster carers, but also the mother and the father were unsuccessful in ‘the rather difficult task of addressing what turned out to be quite complex and entrenched issues impacting their capacity to safely parent E’.
The Magistrate concluded that, despite the period that had passed by the time of the trial, ‘neither [the mother] nor [the father] have yet reached the point of being able to safely parent a child’. Further, from E’s perspective, it was ‘too late for reunification with either of her biological parents to be considered a viable option, as that would inevitably involve rupturing E’s secure attachment with her primary carers’.
The Magistrate said that questions about E’s placement by the Department were ‘somewhat peripheral’. The Court did not have power to make orders about placement, as opposed to guardianship. In any event, the Magistrate was satisfied that E’s placement with Mr and Mrs W was a very good one; that E was settled and had become part of Mr and Mrs W’s family. Mr and Mrs W had demonstrated their ability to meet E’s needs both physically and emotionally. It was an appropriate long-term placement.
His Honour also considered that the issue of whether the Department had permitted the mother and the father to have sufficient contact with E was peripheral. The Court did not have power to make family contact or access orders. If either parent had a concern about a contact determination, then they had the ability to have this reviewed under the CYPS Act. In any event, the Magistrate considered that there was cause for the mother and the father to be hopeful that the Department would be willing to work with them to enable a meaningful connection with E as she grows up.
The Magistrate concluded his reasons by stating that the Chief Executive had met the evidentiary onus of proving why a long-term order was appropriate; and that neither the mother nor the father, as objectors to the Chief Executive’s application, had persuaded him that the order sought should not be made. His Honour therefore made the long-term guardianship order sought by the Chief Executive.
Appeal to a single judge
In late December 2022, the father filed an appeal to a single judge of the Supreme Court. His notice of appeal identified two grounds of appeal:
1. No time to present my case.
2. Chief Executive should have amended records, fix the lies, and start again, refer motion to strike.
The appeal was listed for hearing on 28 February 2022 before Kourakis CJ. The appellant did not appear on that occasion. Whilst this was not explained at the time, it now appears that the explanation for the appellant not appearing was that he had been imprisoned. In any event, having satisfied himself that the father had been notified of the hearing date, Kourakis CJ proceeded to deliver some ex tempore reasons for dismissing the appeal on its merits.
After briefly summarising the background and the Magistrate’s reasons, Kourakis CJ turned to the appeal. Noting that a short extension of time was required, his Honour granted the necessary extension.
In addressing Ground 1, Kourakis CJ noted the long interlocutory history of the matter, and the fact that the trial occurred over several days, separated by a period of almost eight months. His Honour explained that during the course of the hearing, the father cross-examined witnesses, gave evidence, called his sister to give evidence, and was present and made submissions on the final day of the hearing. Although the father had on occasions asked for a break to collect himself during the course of the hearing, he had not sought any adjournment or opportunity to adduce any evidence other than that which he did adduce. His Honour concluded that insofar as Ground 1 related to the father not having an opportunity to present his case, his failure to seek an adjournment and his extensive involvement in the hearing told against him. No error was established.
Kourakis CJ added that, insofar as the father intended to complain that the delay in the hearing and resolution of the proceedings resulted in E having an attachment with her foster carers that was then weighed against him, this did not establish error. Whilst this was an unfortunate consequence of the delay from the father’s perspective, the Magistrate’s reliance upon E’s strong attachment with her foster parents was nevertheless proper.
Kourakis CJ was not able to understand the complaint raised in Ground 2. However, before proceeding to dismiss the appeal, his Honour considered whether there was any reason to apprehend error on the part of the Magistrate. He was not able to identify any error in the Magistrate’s reasoning or conclusion:
Over and above the fact of attachment to the foster parents to which I have referred, the [father’s] involvement in the care of E was limited in time and quite old by the time the Magistrate came to determine this application. It was also no doubt limited qualitatively, given the concerns about the [father’s] threats of violence, which led to the intervention order which was made against the [father] on 25 September 2019. Secondly, but in particular given the [father’s] limited involvement, the placing of E in the care of the [father] could only have taken place with extensive involvement and support from the Department of Child Protection. The [father] had a volatile relationship with child protection workers and it is very unlikely that any arrangement which saw E placed in his care, supported by the Department of Child Protection workers, would have been sustainable.
Application for extension of time and leave to appeal
On 7 August 2024, two and a half years after Kourakis CJ’s decision, the father filed a notice of appeal against this decision, seeking an extension of the time within which to appeal and leave to appeal.
The father’s notice of appeal identified the following grounds of appeal:
1.   There has never been a protection order against my child [E]. Its DCP deliberate act of perjury & malicious prosecution started 2017.
2.   No family report no one talked to me or my family from June 2018 until March 2024.
3.   I was in custody and available for trial.
4.   Judgment made on speculations not on factual evidence.
As to the orders sought on appeal, the notice of appeal referred to:
1.   Immediate intervention for [E’s] welfare & reunification with [E’s] family. We are 1^st generation immigrants from Poland with strong family values.
2.   Restore liberties & rights for my daughter & family.
3.   Compensation for abuse, loss, pain & suffering. Justice and truth.
The notice of appeal gave the following grounds for an extension of time:
1. No statute of limitation on child abuse.
2. Mental health & lack of legal help.
It also gave the following grounds for leave to appeal:
1. We are victims of an error, my child, myself, my family and community.
Justice for [E].

The Court has received and considered submissions prepared by the father. He has not had the benefit of legal assistance. The Court has also received and considered submissions on behalf of the Chief Executive, and from the legal representative of E. The Chief Executive contends that the Court should refuse the applications for an extension of time and leave to appeal. E’s representative also opposes any extension of time or leave to appeal.
The Court has also received and considered a short letter, or submission, from the mother. It appears to have been prepared without legal assistance, but makes clear the mother’s opposition to this Court interfering with the current arrangements for E’s care.
The principles governing an extension of the time within which to appeal are not in dispute.[1] Ultimately the Court acts in the interests of justice, but having regard to considerations including the length of the delay, the explanation for the delay, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of an extension of time. To the extent appropriate (bearing in mind the stage of the proceedings, the information available to the Court and the matters in issue), the Court will also have regard to the merits of the proposed proceedings. In the context of an extension of the time within which to file an appeal, this involves having regard to the prospects of the applicant succeeding in the proposed appeal.
[1] Ulowski v Miller [1968] SASR 277 at 280 (Bray CJ); Gallo v Dawson (1990) 93 ALR 479 at 480-481 (McHugh J); Kowalski v Sim [2019] SASCFC 96 at [60]-[64] (Kourakis CJ, Peek and Parker JJ); Brackenridge v Bendigo and Adelaide Bank Ltd (No 2) [2022] SASCA 16 at [13] (Livesey P, Lovell and David JJA).
In considering the consequences for the parties of granting or refusing an extension of time within which to appeal, it is in turn appropriate to have regard to the respondent’s ‘vested right to retain the judgment’ unless the application is granted.[2] Put another way, in terms more apposite to the present proceedings, it is appropriate to have regard to the interest of the respondent (and indeed the other interested parties, and the public more broadly) in the finality of litigation. It is also appropriate to have regard to the interest of the public, and in particular other litigants, in the efficient use of court resources.[3]
[2] Gallo v Dawson (1990) 93 ALR 479 at 480 (McHugh J).
[3] Kowalski v Sim [2019] SASCFC 96 at [96]-[99], citing Sali v SPC Ltd (1993) 116 ALR 625 at 629 (Brennan, Deane and McHugh JJ).
The principles governing leave to appeal are also well established. Again, the Court acts in the interests of justice.[4] It does so having regard to considerations including: whether the decision is attended by sufficient doubt to warrant its reconsideration on appeal; whether the proposed appeal raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.
[4] See, for example, Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2023] SASCA 101 at [123] (Livesey P, Doyle JA and Stanley AJA).
As the merits of the proposed appeal inform both whether to grant an extension of time, and whether to grant leave to appeal, it is appropriate to commence by addressing the father’s proposed grounds of appeal.
Merits of the proposed appeal
None of the four grounds sought to be raised before this Court were raised in the father’s first appeal to the single judge. But even putting this difficulty to one side, they do not appear – having regard to both the terms of the grounds in the notice of appeal, and the father’s written submissions – to have any merit.
Ground 1 relates to the father’s complaint that the Department, for a period of time, acted on the incorrect basis that the DVIO obtained against the father included E as a protected person. Whilst the father’s frustration that this occurred is understandable, it does not provide any basis for challenging the Magistrate’s decision. As recounted above, the Magistrate acknowledged that this had occurred, and indeed that it is likely to have contributed to the difficulties the father experienced in obtaining access to E. Even if this may in turn have contributed to the father’s difficulties in maintaining a relationship with his daughter, that was of limited significance to the ultimate issues to be resolved by the Magistrate. The Magistrate correctly identified those as the risk of harm to E through interfering with her attachment with her foster carers, and the suitability of the mother and the father as carers for E. Ground 1 does not provide any basis for impugning the Magistrate’s analysis of, or conclusions in relation to, these matters.
Ground 2 involves a complaint that the Department did not make adequate enquiries of the father, or his family, as to the father’s suitability (with the assistance of his family, particularly his sister) to care for E. Again, this complaint does not squarely address the basis for the Magistrate’s decision. The Magistrate’s primary basis for making a long-term guardianship order in favour of the Chief Executive was the risk of harm associated with interfering with E’s attachment with her foster carers. Whilst the Magistrate also concluded that the father was not able to properly care for E, this was not essential to his decision. Further, and in any event, this conclusion was based upon fundamental concerns about the father’s personality and emotional instability, as detailed in the report and evidence provided by Dr Begg, together with his history of violence and drug abuse. It is clear that the Magistrate had regard to the father’s submissions to the effect that he could, with the assistance of his family, care for E. However, the evidence left the Magistrate with the concerns just mentioned. It is not clear how further enquiries of the father, or his family, could have addressed these concerns, let alone provide a basis for impugning the Magistrate’s decision on appeal.
Ground 3 is difficult to understand. To the extent that the ground is meant to address the father’s unavailability due to his incarceration, this is not relevant to what occurred at trial. The father was present for the duration of the trial. It appears he may have been incarcerated at the time of the appeal before Kourakis CJ, although there is some confusion about this. But even assuming the father was incarcerated at the time, this does not establish error in his Honour’s decision to proceed to determine the appeal. There is no explanation for the father’s apparent failure to make any contact with the Court to explain his absence. Further, and in any event, Kourakis CJ did not dismiss the appeal on account of the father’s non-attendance. His Honour proceeded to consider and determine it on its merits. Neither this ground, nor the other matters sought to be raised, provides any basis for impugning his Honour’s decision on the merits, let alone a basis for this Court to reach a different conclusion on the merits.
Ground 4 involves a complaint that the judgment below was based upon speculation rather than evidence or facts. Regardless of whether it is directed to the reasons of the Magistrate or Kourakis CJ, there is no merit in this complaint. As recounted earlier, the Magistrate’s reasons and decision were anchored in a close analysis of the evidence, and Kourakis CJ’s reasons were based upon an accurate summary and understanding of the reasons and decision below.
For the reasons given, there is no merit in the grounds of appeal sought to be raised. Given that the father is not represented, it is appropriate, as Kourakis CJ did, to consider the matter more broadly, having regard to not only the father’s written submissions, but also the Magistrate’s reasons. However, this broader review has not revealed any basis for concern in relation to the Magistrate’s reasons or conclusion. To the contrary, his reasons and conclusion appear to reflect a careful and appropriate balancing of the relevant considerations.
Extension of time
Returning to the matters relevant to the father’s application for an extension of time, the starting point is that the proposed appeal is significantly out of time. There has been a delay of close to two and a half years since Kourakis CJ’s decision.
The father has not provided any explanation for his delay in bringing the appeal, other than his reference, in his grounds for an extension, to his mental health and lack of legal help. It may also be assumed that his incarceration for a significant portion of the intervening period also impeded any attempts he might have been inclined to make to pursue an appeal. That said, the father has not provided any evidence or detail in support of these potential barriers to him pursuing his appeal rights in a timely way. He has not provided any explanation at all as to the ways in which, or the extent to which, these matters have impeded him. As a result, this Court has no way of knowing the extent to which, if at all, they might provide a proper excuse for some or all of the father’s delay in commencing his appeal.
The father’s reference to there being no statute of limitations upon child abuse is irrelevant.
On the other hand, the significant time that has elapsed since these guardianship proceedings were commenced, and the interest of the other parties (and the public generally) in the finality of the legal proceedings, are important considerations. It is significant in this regard that both E and the mother support this Court refusing any extension of time or leave to appeal. E, through her legal representative, filed relatively detailed submissions in support of this position. The mother is not legally represented, but provided the Court with a short letter, or submission, to the effect that she objected to this Court intervening in any way that might interfere with E’s current care arrangements. In her view, E was ‘happy, settled and well adjusted’ in her current care arrangements with her foster carers. It is apparent that any attempt to interfere with the care arrangements that have been in place for not only a lengthy period prior to the Magistrate’s decision, but also the almost three years that have now passed since that decision, would be to expose E, her mother, and indeed Mr and Mrs W, to the potential for significant stress and anxiety.
In summary, given the lack of any apparent merit in the proposed appeal, the lengthy delay in seeking leave to appeal, the lack of any adequate explanation for that delay, and the significant interest in finality, the interests of justice do not favour this Court granting an extension of time. The application for an extension of time must be refused.
Leave to appeal
Having determined not to grant an extension of the time within which to appeal, it is not strictly necessary to address the question of leave to appeal. However, for completeness, it is appropriate to add that leave to appeal should, in any event, be refused.
For the reasons already explained, there is no merit in the proposed appeal. Nor does it seek to raise any issues of principle or general importance. Whilst accepting that the guardianship of his daughter is a matter of fundamental importance to the father, that is not enough to justify a grant of leave to appeal. Even if his application for leave to appeal were to be dismissed, the father retains the ability to make a further application, under s 55 of the CYPS Act, to seek the revocation of the long-term guardianship application, subject to him establishing a material change in circumstances justifying reconsideration of E’s current arrangements consistently with the overriding consideration that E be protected from harm. Further, if the matter were otherwise finely balanced, the father’s interest in pursuing his appeal would also need to be balanced against the interests of E and her mother in finality.
However, the matter is not finely balanced. In circumstances where there is simply no merit in the proposed appeal, the interests of justice do not favour a grant of leave to appeal.
Conclusion
For the reasons given, the father’s application for an extension of the time within which to appeal should be refused and, to the extent necessary, his application for leave to appeal dismissed.