D-P v Minister for Child Protection - [2018] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal)
D-P v MINISTER FOR CHILD PROTECTION
[2018] SASC 149
Judgment of The Honourable Justice Parker
27 September 2018
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - CHILDREN - GUARDIANSHIP, CUSTODY AND RESIDENCE
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - INTERCEPTION AND PROHIBITION THEREOF
This is an appeal against the dismissal by the Youth Court of South Australia of the appellant’s application to revoke consent orders made under s 38 of the Children’s Protection Act 1993 (SA) concerning two of her children.
The appeal also challenges the correctness of two rulings regarding the admissibility of evidence made by the Youth Court Judge. In the first ruling, her Honour held that 20 discs containing recordings were inadmissible. In the second, her Honour held that the Court was entitled to have regard to findings of fact made in earlier proceedings involving the appellant.
Held, per Parker J, dismissing the appeal:
1. The order made by the Youth Court Judge for summary dismissal of the revocation application is interlocutory in nature. Thus, the appeal may be heard by a single Judge (at [18]-[28]).
2. There is no right to appeal to this Court on either of the two evidentiary rulings (at [33]-[35]).
3. The Youth Court Judge correctly dismissed the application without conducting a full hearing, as no information was placed before the Youth Court that demonstrated any material change in circumstances so as to justify a revisiting of the orders (at [43]-[48]).
4. The 2016 recordings were made contrary to the Listening and Surveillance Devices Act 1972 (SA). The prohibition on use of the recordings made contrary to the 1972 Act did not apply after the commencement of the Surveillance Devices Act 2016 (SA) (Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd not followed). The position was not affected by s 16 of the Acts Interpretation Act 1915 (SA) (at [66]-[90]).
5. The Youth Court Judge appropriately exercised her discretion to exclude the relevant recordings in accordance with the Bunning v Cross discretion (at [91]-[94]).
6. There was no process error or outcome error in relation to the Youth Court Judge exercising the discretion as to whether or not earlier findings should be admitted into evidence (at [102]-[109]).
Children’s Protection Act 1993 (SA) ss 38, 40, 45, 54F; Youth Court Act 1993 ( SA) ss 22; Intervention Orders (Prevention of Abuse) Act 2009 (SA); Summary Procedures Act 1921 (SA); Listening and Surveillance Devices Act 1972 (SA) ss 4, 7; Surveillance Devices Act 2016 (SA) ss 4, 6, 12; Acts Interpretation Act 1915 (SA) s 16; Criminal Code (Tas); Acts Interpretation Act 1931 (Tas) s 16; Acts Interpretation Acts 1954 (Qld) s 16; Mental Health Act 1993 (SA); Family Law Act 1975 (Cth) s 69ZX, referred to.
Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; SB, MF v Minister for Education & Child Development [2016] SASC 116; Groom v Police (No 3) (2013) 231 A Crim R 1; House v The King (1936) 55 CLR 499; Police v Dorizzi (2002) 84 SASR 416; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; Bennett v Bennett (1991) FLC 92-191; Thomas v Nash (2010) 107 SASR 309; Bunning v Cross (1978) 141 CLR 54; Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; Rodway v The Queen (1990) 169 CLR 515; R v Swaffield (1998) 192 CLR 159; Re B [1997] 2 All ER 29; B & J [2009] FamCAFC 103; Holgar & Stott [2017] FamCA 772, applied.
Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116, not followed.
H, A v Minister for Families & Communities [2005] SASC 339; H, JR v Department for Child Protection & Anor [2017] SASC 121; Minister for Education & Child Development v JH, JH & L D-P (Unreported, Youth Court of South Australia, McEwen J, 16 December 2015); Commonwealth Bank of Australia v Heinrich (No 2) [2003] SASC 436; Groom v Police (2015) 252 A Crim R 332; O, GL v Police [2016] SASC 73; Marley-Duncan v Police [2015] SASC 146, discussed.

D-P v MINISTER FOR CHILD PROTECTION
[2018] SASC 149
Magistrates Appeal: Civil

PARKER J: This is an appeal against the dismissal by the Youth Court of the appellant’s application to revoke consent orders made on 24 January 2017 under s 38 of the Children’s Protection Act 1993 (SA) concerning two of her children. The respondent Minister contends that the Judge did not err in dismissing the application to revoke the consent orders.
In these reasons I will call the appellant, Mrs H, her husband, Mr H, and the children, LH and EH. While the appeal was instituted under the name of D-P she informed the Court that she prefers to be known as Mrs H. The Youth Court judgment refers to her as Mrs H.
The appeal also challenges the correctness of two rulings about the admissibility of evidence made by the Judge. In the first ruling her Honour held that 20 discs that Mr H sought to tender as evidence were inadmissible. Her Honour held in the second ruling that the Court was entitled to have regard to findings of fact made in earlier proceedings involving Mrs H and Mr H. The Minister contends that the appeal against the evidentiary ruling is not competent. If the appeal is competent, the Minister contends that both rulings on evidence were correct.
Mrs H was not legally represented at the appeal hearing. She sought permission for Mr H to speak on her behalf because she suffers from dyslexia and has difficulty with documents. Counsel for the Minister did not object and noted that Mr H was technically a respondent to this appeal.[1] For that reason, and as the Youth Court orders that Mrs H is seeking to have varied or set aside concern his children and his contact with them, I granted permission for Mr H to make submissions. On a number of occasions Mrs H either added to or adopted the submissions made by Mr H.
[1] Mr H has not been joined as a respondent.
Background
Mr and Mrs H are the parents of:
·L, a boy, born in March 2015 and
·E, a girl, born in March 2016.
L has been in foster care since his birth. He was the subject of a contested application for a 12 month guardianship order. That application was decided in the favour of the Minister by Judge McEwen on 16 December 2015.
The consent orders made on 24 January 2017
On 26 October 2016, the Minister applied for long-term guardianship orders in respect of both L and E. The trial of that application commenced in the Youth Court on 24 January 2017. Mr H withdrew from the hearing before it was completed. Following negotiations, Mrs H consented to the orders that she now challenges. The effect of those orders was that L was made subject to a long‑term guardianship order while E was subject to a 12 months supervision order. The Court also ordered that Mr H refrain from having any contact with either of the children. Mrs H was also ordered not to record access visits or contact with the Department.
The 2017 appeal by Mr H to this Court
On 15 February 2017, Mr H appealed to this Court against the consent orders made on 24 January 2017. However, Mrs H did not appeal against any of the orders. She had been legally represented at all hearings before the Youth Court. The two children were also separately represented at all hearings and, through their separate legal representative, consented to the final orders.
The appeal by Mr H to this Court was heard by Nicholson J.[2] His Honour noted that Mr H had informed the Court that he was not seeking orders to be made in his favour in respect of either child but that he wanted L to be returned to Mrs H. Mr H also sought the removal of the restriction on access imposed on Mrs H. Nicholson J questioned whether Mr H had standing to appeal against the orders made with the consent of Mrs H (other than the order that he refrain from contacting the children). His Honour found that it was not necessary to decide that issue.
[2] H, JR v Department for Child Protection & Anor [2017] SASC 121.
Nicholson J noted in his reasons that, because of concerns about the past behaviour of Mr H, he was not present at the Youth Court for the hearing on 24 January 2017 but instead participated in the proceedings by video link to the Adelaide Magistrates Court. Mr H withdrew from the hearing shortly after its commencement but left behind DVD and audio material that he wished the Court to take into account. That material was secured and provided to the Youth Court Magistrate who was conducting the hearing. After the withdrawal of Mr H, counsel for the Minister opened her case at some length. Evidence-in-chief was taken from the first witness for the Minister, a Departmental social worker. The trial was then adjourned to enable the parties who were present to engage in settlement discussions. The parties reached agreement after some two hours. The effect of the agreement was that Mrs H would not oppose the orders sought by the Minister but did so without making any admission about any of the allegations. The children’s separate representative also supported the proposed orders.
Nicholson J noted that, because Mrs H had consented to the making of the orders on 24 January 2017 the Magistrate did not make a determination on the merits. However, his Honour noted that the Magistrate had before her a substantial body of documentary evidence about the Department’s experience over a number of years with Mr H, the children and Mrs H. The documentary evidence included Mr H’s criminal record and what his Honour described as “a substantial quantity of expert assessments and reports from social workers, psychologists and psychiatrists.”[3] Nicholson J held that the documentary record relied on by the Minister provided substantial factual support for the Minister’s application.
[3] Ibid at [31].
Nicholson J held that the Magistrate did not err in continuing with the hearing after the departure of Mr H. His Honour observed that Mr H had “created an environment where he was no longer willing or able to participate and which was entirely of his own doing”.[4]
[4] Ibid at [35].
It is unnecessary to refer to all the findings made by Nicholson J. However, his Honour did find that Mr H had been denied procedural fairness in so far the application for the refraining order was not made until after he had left the hearing. Nevertheless, Nicholson J decided that it would be inappropriate to set aside the refraining order because the case presented by the Minister to the Magistrate, when considered on a prima facie basis, was overwhelming. Nicholson J further considered that, because of the approach taken by Mr H before the Magistrate and on appeal, the case for a refraining order was also overwhelming. The appeal was dismissed by Nicholson J.
Mr H’s revocation application
On 13 November 2017, Mr H filed an application in the Youth Court under s 40 of the Children’s Protection Act 1993 (SA) in which he sought revocation of the orders made on 24 January 2017. He also sought that the guardianship of the two children be returned to Mrs H. The matter came on for hearing on 1 February 2018. The Judge informed Mr H that he could not make an application for L to be returned to the care of Mrs H. At that point Mrs H indicated that she may make a revocation application in her own right. The Judge encouraged her to obtain legal advice. The matter was then adjourned.
Mrs H’s revocation application
On 5 February 2018 Mrs H filed an application for revocation of the orders of 24 January 2017. That application was dismissed by the Youth Court on 12 June 2018 on the basis that there was no demonstrated material change in circumstances that would justify reconsideration of the orders made by consent on 24 January 2017. That is the subject matter of this appeal.
The current position
This Court has been informed that there is no current order in respect of E other than the refraining order that applies to Mr H. The Court has also been informed that L remains in what is said to be stable long term foster care pursuant to the consent orders made on 24 January 2017. The application made by Mr H for revocation of the refraining order is still on foot in the Youth Court.
Grounds of appeal
The grounds of appeal advanced by Mrs H may be paraphrased as follows:
1The recorded material should have been admitted into evidence. Judge McEwen had previously admitted such evidence. Due to the failure to admit this evidence there was no factual evidence before the Court.
2The Children’s Protection Act states that if a parent is able and willing to care for a child, this should occur.
3The ruling that there was no substantial change in circumstances was not correct. This was the case because the only information before the Court was the untrue and criminally defamatory information supplied to the Court by employees of the Department.
Whether interlocutory order
Section 22(2)(a)(i) of the Youth Court Act 1993 (SA) provides that an appeal against any judgment given by a judge of the Youth Court lies, in the case of an interlocutory judgment, to the Supreme Court constituted of a single judge. Section 22(2)(a)(ii) provides that, in any other case, an appeal from a single judge lies to the Full Court of the Supreme Court.
Each of the relevant orders or rulings was made by a Judge of the Youth Court. Accordingly, I only have jurisdiction to hear this appeal if the appeal relates to an interlocutory judgment. The respondent has also raised a separate issue, being that the two evidentiary rulings made by the Judge are not judgments and therefore cannot be the subject of a competent appeal. I will consider that question later.
At the commencement of the appeal hearing I invited submissions as to whether I had jurisdiction under s 22 of the Youth Court Act to hear and determine the appeal. After making brief submissions on that question, counsel for the respondent sought permission to file supplementary written submissions on that question. Neither Mr H nor Mrs H objected to that course.
I have received written submissions on the jurisdictional question from the respondent. The appellant has not filed any submissions but Mr H has made some comment by email.
The question of whether a judgment is final or interlocutory was considered by Kourakis J (as he then was) (with Nyland and David JJ agreeing) in Hardel Pty Ltd v Burrell & Family Pty Ltd where his Honour summarised the principles as follows:[5]
[24]The discussion in those passages of the interrelationship between the underlying dispute or matter involving the parties and the action which is instituted to resolve it is of considerable importance. An action is brought so that the controversy between the parties may be adjudicated. A final order determines the underlying matter, or some part of it, and for that reason will generally dispose of the action or an element of it. An interlocutory order, on the other hand, determines an aspect of the forensic procedure in accordance with which the matter will be adjudicated. For that reason it will generally direct the course of further proceedings rather than determine any part of the subject matter of the dispute. It must be remembered that the action itself is no more than the procedure by which the court’s jurisdiction is invoked; it must not be conflated with the subject matter of the controversy. Consequently, an order bringing an action to an end by dismissal of the action or default judgment may still be interlocutory. The anomalous position of an order non-suiting a party is the result of the peculiar history and features of that procedure.
…
[34]In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[35]A final order is generally one that creates the “new charter” to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
[36]Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory. Speaking loosely it might be said that parties have a right to the correct and proper application of the procedural rules of the Court to the litigation they conduct within it. Indeed, if the proper procedure is not applied, the parties can generally seek leave to appeal procedural orders. However, parties do not have “rights” against the judicial tribunals that determine their controversies in the same sense that they have rights against each other under the substantive law.
(Footnotes omitted)
[5] (2009) 103 SASR 408.
Consistently with the approach adopted by the Full Court in Hardel, Bampton J held in SB, MF v Minister for Education & Child Development that a variation order made under s 54F of the Children’s Protection Act was interlocutory in nature.[6] The effect of the variation order in that case was to set aside an ancillary order that had granted the appellant supervised access to the protected child. The variation order did not preclude the appellant from making a further application for access. While the case concerned the transfer of a protected child to Queensland, that aspect of the matter is not material to the present question. The point recognised by Bampton J is that the making of the variation order did not preclude the making of a further application for another or different orders. Thus, the order did not finally settle the controversy between the parties. For that reason the order was interlocutory.
[6] [2016] SASC 116 at [47]-[55] (Bampton J).
I also note that the same reasoning has been adopted with respect to intervention orders under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and also under the antecedent provisions of what was, at the relevant time, entitled the Summary Procedure Act 1921 (SA). In Groom v Police (No 3), Sulan J held that an order confirming an interim intervention order was interlocutory in nature as it did not finally determine the rights of the parties.[7] That decision has been applied on a number of occasions.[8]
[7] (2013) 231 A Crim R 1 at 6-7 [29]-[33].
[8] O, GL v Police [2016] SASC 73 at [1]-[2]; Marley-Duncan v Police [2015] SASC 146 at [26].

The relevant point was succinctly made by Debelle J in Commonwealth Bank of Australia v Heinrich (No 2) where his Honour observed that “[i]t is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked.”[9]
[9] [2003] SASC 436 at [16].
The Youth Court has made orders under s 38 of the Children’s Protection Act that apply to the children of Mr H and Mrs H. An application has been made by Mrs H under s 40 for the revocation of these orders. The summary dismissal of that application is one of the matters that is the subject of this appeal. The dismissal of that application does not finally determine the guardianship rights of Mrs H in respect of her son L. She is entitled to make a further application at any time. However, for the reasons indicated below, such an application may be summarily dismissed if there has been no material change in the relevant circumstances.
In that light I conclude that the order made by the Judge for summary dismissal of the revocation application is interlocutory in nature, Thus, I have jurisdiction to hear the present appeal relating to that order.
The two rulings on evidence made by the Judge were clearly not final orders determining the rights of the parties. The further question is whether those orders were judgments that are capable of being the subject of a competent appeal.
Whether the evidentiary rulings were appellable
The respondent’s submissions
The respondent submits that Mrs H is not entitled to appeal against the two evidentiary rulings made by the Judge. Section 22 of the Youth Court Act 1993 (SA) provides for an appeal (subject to certain irrelevant limitations) to the Supreme Court against any “judgment” given in the Youth Court. The term “judgment” is defined to include a “declaration or order”. An evidentiary ruling is not a “judgment”.[10]
[10] McIlvar v Szwarcbord [2008] SASC 179 at [8]-[24] (White J).
The respondent further submits that even if Mrs H’s appeal against the evidentiary rulings is competent, the appeal on these two grounds should be dismissed. The Judge correctly held that the recordings were made contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA) (the 1972 Act) and were not made for the protection of the “lawful interests” of Mrs H or Mr H. There was nothing in the subsequent decision of this Court in Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd that casts doubt on the correctness of the conclusion that the recordings were not made to protect lawful interests.[11] The suggestion by the appellant that similar recordings were admitted into evidence in earlier proceedings before Judge McEwen is not correct. The discs were simply marked for identification. In any event, any ruling made in the earlier proceedings is not relevant as the subject recordings were made after the 2015 judgment in the Youth Court.
[11] [2018] SASC 116.
The respondent further submits that there was no error in the exercise by the Judge of her discretion to adopt the previous findings made by this Court in 2005 and by the Youth Court in 2015. The responded submits that it is nonsensical for Mrs H to assert that the previous findings are “unproven” or “unfactual”. No appealable error of the type identified in House v The King has been identified.[12]
[12] (1936) 55 CLR 499.
The respondent contends that the Judge clearly had a discretion as to whether to proceed to a full hearing or to determine the threshold question as to whether there had been a material change in circumstances since the making of the subject orders. No appealable error had been identified. The appellant had not provided any particulars in support of her contention that the previous findings should not be relied upon because they were “untruth and criminally defamatry [sic] information”. The appellant had simply made broad and unsubstantiated assertions at the trial. There was no reason to doubt that L remained in a stable foster placement and would suffer significant psychological harm if he was returned to the care of Mrs H. The Court is required to focus on the best interests of L.
Consideration
Section 22 of the Youth Court Act provides for an appeal to the Supreme Court against any “judgment” of the Youth Court. The term “judgment” is defined to include a “declaration or order”.
In Police v Dorizzi Duggan J, with Debelle and Williams JJ agreeing, held that a ruling on the admissibility of evidence is not a judgment.[13] In Legal Practitioners Complaints Committee v A Practitioner King CJ described a ruling concerning the admissibility of evidence as an incidental ruling.[14] An incidental ruling was not a judgment or order and therefore not subject to appeal.[15] I therefore find that the appeal against the two rulings as to the admissibility of evidence made by the Judge are not competent. To put the matter simply, there is no right to appeal to this Court on either the ruling made by the Judge that the earlier findings made by this Court and the Youth Court were admissible as evidence, or the ruling that the recordings that Mr H sought to introduce into evidence were not admissible.
[13] (2002) 84 SASR 416 at 419-420 [19].
[14] (1987) 46 SASR 126 at 127.
[15] Ibid.
While I have concluded that the appeals were not competent, for completeness and because Mr H and Mrs H were unrepresented, I will consider whether the Judge erred in making the evidentiary rulings. The ruling as to reliance upon earlier findings also warrants the consideration of this Court as it concerns an important point of principle concerning the practice of the Youth Court.
The dismissal of the application
The Judge accepted the submission made on behalf of the Minister that Mrs H had not identified any material change in circumstances from those that existed at the time the orders relating to L were made on 24 January 2017. Mrs H had merely contended that “there are no facts and the allegations are falsehoods and ill formed opinions.” The Judge also noted that there had been no material change in the circumstances of L. He remained in the long-term placement that he entered shortly after his birth.
In relation to L the Judge also took into account a report co-authored by two Departmental social workers, specifically a senior practitioner and a supervisor. The report writers noted that L had been raised since birth by “attachment figures who are highly attuned to his cues and needs.” They also noted that L had formed a strong secure attachment with his carers and should he be removed from this environment it would have a significant detrimental effect upon his health and wellbeing. His social, psychological and emotional development would be significantly compromised by the upheaval caused by moving him from his safe environment. This may cause L long-term mental health difficulties such as anxiety, withdrawal or aggression. The writers also noted that when L attends access with his mother, Mrs H, and his sister E, he presents as shy and unsure and relies upon the Departmental workers to stay in close proximity to him at all times. It has been observed that during the access visits L remains fearful of close proximity to his mother and will “shut down”. Mrs H has difficulty understanding and accurately responding to L’s cues.
The Judge also noted that the orders made on 24 January 2017 were made with the consent of Mrs H. She was represented at the hearing by counsel with significant experience in the jurisdiction who was instructed by a solicitor, also with significant experience. While Mrs H alleges that she was “blackmailed” into consenting to the orders, she had provided no details in support of that allegation. The Judge also noted that the application to revoke the orders was lodged more than 12 months after the orders were made.
The Judge applied the principles stated by the Full Court of the Family Court in In the Marriage of Rice and Asplund[16] and Bennett v Bennett.[17]Her Honour also noted that Mr H clearly could not pursue an application for L to be returned to the care of Mrs H. However, it was open to Mr H to pursue an application to revoke the refraining orders and, if he succeeded in that application, to make an application for orders giving access to L and to E.
[16] (1978) 6 Fam LR 570.
[17] (1991) FLC 92-191.
The appellant’s submissions
Mr H and Mrs H contended, as I have previously noted, that the earlier adverse findings were not correct. Mrs H also contended that she had been coerced into giving her agreement to the consent orders made on 24 January 2017. She alleged that she had been told by her counsel that if she did not grant consent the Court would, in any event, make adverse orders. Mr H expressly stated during the appeal hearing that there had not been a material change in the circumstances since the earlier rulings.
The respondent’s submissions
The respondent submits that the Judge clearly had a discretion as to whether to proceed to a full hearing or to dismiss the application to vary the subsisting orders on the basis that there had been no material change in circumstances. The respondent submits that there has been no appealable error identified in the exercise of the Judge’s discretion.
The respondent also submits that the appellant merely advanced broad and unsubstantiated assertions concerning the correctness of the earlier findings and decisions at trial. No particulars have been provided in the notice of appeal concerning these issues. The respondent also submits that the evidence establishes that L remains in a stable foster placement and would suffer significant psychological harm if he was to be returned to the care of the appellant. When hearing the revocation application it was necessary for the Court to focus on the interests of L.
Consideration
In Rice and Asplund, the Full Court of the Family Court stated that an application to reverse an earlier custody order should not be lightly entertained.[18] The Court would need to be satisfied by the applicant that there is some material change in circumstances or a new issue which will justify such a serious step. It is necessary to find that there are changes or new circumstances which require a Court to consider afresh how the welfare of the child should be best served. The same principles apply whether the original order was made by consent or after a contested hearing.
[18] (1978) 6 Fam LR 570.
The Full Court in Rice and Asplund also held that once the Court finds that there is a new factor or a change in circumstances then the issue of custody must be determined in the ordinary way. The factors for and against the proposals made by each party must be weighed up with the welfare of the child being the paramount consideration. The Court should give weight to any earlier decision, and in particular, any findings of fact, but a Judge is not bound by the Court’s earlier assessment.
In Bennett v Bennett, the Full Court of the Family Court held that when an application is made to vary or set aside a custody order, the Court has a discretion as to whether to proceed to a full hearing or to determine first the threshold question of whether there has been a change in circumstances. [19]
[19] (1991) FLC 92-191.
In light of the principles expressed by the Full Court of the Family Court in Rice and Asplund and in Bennett v Bennett, I consider that the Judge correctly found that, having regard to the circumstances of this matter and its lengthy history, it was preferable to decide first whether there had been any material change in circumstances as a preliminary question before embarking on a full hearing.
Neither Mr H nor Mrs H placed any information before the Youth Court that demonstrated any material change in circumstances so as to justify a revisiting of the order. They were also adamant at the appeal hearing that there had been no relevant change. Accordingly, I find that the Judge correctly dismissed the application without conducting a full hearing.
I also consider that the Judge correctly applied the principles stated by the Full Court of the Family Court in Bennett v Bennett. In other words, it was well within the discretion of the Judge to determine whether there had been any material change in the relevant circumstances as a preliminary question rather than embark immediately on a full hearing. As the appellant, and also Mr H, did not contend that there had been any material change in circumstances, her Honour appropriately exercised her discretion to deal with the matter summarily.
Admissibility of the recordings
The Judge’s reasons
The Judge considered whether the 20 discs that Mr H sought to tender should be admitted into evidence. Her Honour classified the information contained in the discs into three categories. These were, first, video recordings of access visits together with conversations between Mr and Mrs H as they travelled to visits and waited to see L. Secondly, the discs included audio recordings of telephone conversations between Mr H and Departmental staff. Thirdly, there were recordings of meetings between Mr H and Mrs H and Departmental staff.
The Judge viewed and listened to the discs. They included both audio and video recordings. Her Honour noted that some of the recordings were duplicated while others were barely audible. Many of the recordings were of conversations between Mr and Mrs H.
Mr H alleged before the Judge that a departmental worker, Mr Akesh Segal, had given him permission to record anything he wanted. The only relevant recording identified by the Judge was a conversation where Mr Segal clearly stated to Mr and Mrs H that the Department did not agree to the recording of access visits. There were also two other recordings where Mr and Mrs H were told that the Department did not consent to the recording of the meeting or access visits. The Judge also noted that Mr H had signed a written undertaking on 25 October 2016 which included his acknowledgement that the Department did not consent to the recording of his interactions with staff. Mr H also agreed at the hearing in the Youth Court that the Departmental workers had not consented to him recording access visits.
Mr H also contended before the Youth Court that the discs had been tendered in the trial before Judge McEwen in December 2015. However, I note that all the recordings were made during a six month period in 2016. Thus, those discs could not have been tendered in December 2015.
Because the recordings were made during 2016 the Judge held that the relevant legislation was the 1972 Act. That Act was repealed on 18 December 2017 and replaced by the Surveillance Devices Act 2016 (SA) (the 2016 Act).
The relevant provisions of the 1972 Act were sections 4 and 7. Section 4 relevantly provided that a person must not intentionally use a listening device to record a private conversation, whether or not they were a party to that conversation, without the express or implied consent of the parties to the conversation. Section 7 provided that the prohibition under s 4 did not apply if the listening device was used in the course of the duty of the person, in the public interest or for the protection of the lawful interests of the person.
The Judge held that the conversations in questions were clearly “private conversations” for the purposes of s 4 and observed that there was no dispute that a listening device was used to record the relevant conversations. The Judge also found that it was clear that the Departmental workers had not consented to the making of the recordings. In that light her Honour found that the recordings had been made contrary to s 4. Her Honour found that there was no issue as to the recordings being made “in the course of duty” or in the “public interest”. Thus, the issue was whether the recordings had been made for the protection of the lawful interests of Mr H. If so, the recording was permitted by s 7.
The Judge referred to the decision of Doyle CJ in Thomas v Nash where Doyle CJ found that the recordings had been made in case they might later be used in some way to the advantage of the person.[20] His Honour found that a mere desire to have a reliable record of a conversation was not enough to satisfy the lawful interest requirement. His Honour also found that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest although each case must be considered on its facts.
[20] (2010) 107 SASR 309.
The Judge also referred to Groom v Police where Nicholson J found that a recording made of a conversation during the handover of a child for access purposes was made to protect the lawful interests of the person.[21] In that case, due to domestic violence, an intervention order was in force. The person making the recording had a genuine concern for their own safety if there should be further domestic violence. It was important that intervention orders can be enforced and respondents must be discouraged from breaching any such court order.
[21] (2015) 252 A Crim R 332.
After considering these authorities the Judge concluded there was no basis upon which the recordings made by Mr and Mrs H could be said to have been made to protect their lawful interests. It was evident from the conversations that they had been made for the purposes of disputing the account of Departmental officers about access visits and for possible use in later legal proceedings. Because the 1972 Act had been repealed and replaced by the 2017 Act after the making of the recordings, but before the matter came before the Court, the judge applied s 12 of the 2017 Act. Her Honour expressed some doubt as to whether s 12 of the 2017 Act operated to prohibit the communication or publication of the discs to the Court because the material had not been derived contrary to the 2017 Act. Her Honour found that the transitional provisions did not assist.
The Judge did not have the assistance of the subsequent examination of this issue undertaken by Doyle J in Nanosecond Corporation Ltd v Glen Carron Pty Ltd. His Honour found that the 2017 Act would operate in circumstances that are indistinguishable from the present matter. Doyle J held that the 2017 Act prohibited the use of recordings made contrary to the 1972 Act when it was in force.[22] I have come to a different conclusion concerning the effect of the 1972 Act after its repeal.[23]
[22] [2018] SASC 116 at [76]-[77], [123]-[125].
[23] See [90] below.
Given her Honour’s uncertainty as to the operation of the 2017 Act, she considered if she should exercise the general discretion to exclude the material in accordance with the principle in Bunning v Cross.[24] As the recordings had been made without the permission of Departmental workers in circumstances where they had expressly stated that there was to be no recording, the Judge held that the Court should not condone the actions of Mr H and Mrs H by receiving the discs as evidence. The Judge also noted that the material was of questionable relevance given the time elapsed since the recordings were made.
[24] (1978) 141 CLR 54.
The appellant’s submissions
Mr H contended that counsel for the Minister had consented to the admission of DVD material into evidence in proceedings before Judge McEwen on 5 November 2015. As I understand the submission made by Mr H, his contention was that because the Department or Minister had consented to the admission of DVD recordings into evidence that effectively granted him and Mrs H an ongoing right to record their interaction with Departmental officers and also the contact Mr and Mrs H had with their children. In legal terms Mr H’s submission may amount to a contention that the respondent was estopped from denying that he had permission to make recordings. Alternatively, his contention may be that an ongoing approval had been granted by the Minister or Department for the making of recordings.
The respondent’s submissions

Counsel for the respondent referred to p 270 of the transcript of proceedings before Judge McEwen on 5 November 2015. Judge McEwen indicated that he had listened to a random sample of the recordings provided by Mr H. Counsel for the Minister, after noting that there was an issue in relation to the application of the Listening and Surveillance Devices Act, submitted to Judge McEwen that “Families SA is happy to accept that what appears on those CD ROMs, if they are simply Mr [H] positively engaging with his son during access, we don’t have an issue with that at all.” Judge McEwen referred to potential difficulties if the recordings were to be admitted into evidence. In response to a suggestion by Judge McEwen, counsel submitted that the issue might be resolved without the need to determine the admissibility of the recordings.
In that light counsel for the Minister in the present appeal submitted that counsel in the hearing before Judge McEwen was trying to determine what matters were being contested with a view to avoiding legal argument about the admissibility of the recordings.
The respondent also submitted that the Judge had not erred in refusing to admit the recordings into evidence. The making of the recordings was contrary to s 4 of the Listening and Surveillance Devices Act 1972 and the recordings had not been made to protect the lawful interests of either Mr H or Mrs H. There was nothing in the subsequent decision of this Court in Nanosecond that cast doubt on the conclusion by the Judge that the recordings were not made to protect lawful interests. Even if the recordings had been admitted into evidence in the proceedings before Judge McEwen, any such ruling would be irrelevant in that the recordings now relied upon by the appellant were made after the conclusion of the proceedings before Judge McEwen. In any event, the respondent submits that the recordings were not admitted into evidence by Judge McEwen and were simply marked for identification.
The respondent submits that the recordings were not made to protect the lawful interests of Mr H and Mrs H. Accordingly, the Judge correctly found that the recordings could not be admitted into evidence. The respondent further submits that the judgment of Doyle J in Nanosecond establishes that the use of the recordings was proscribed by the 2016 Act.[25]
[25] [2018] SASC 116 at [76]-[77], [123]-[125].
Consideration
I do not accept the contention by Mr H that the passages in the transcript of the proceedings before Judge McEwen on 5 November 2015 establishes that counsel for the Minister had consented to the admission of the recordings into evidence in the proceedings that were then on foot in the Youth Court.[26] The clear effect of the submissions being put to Judge McEwen by counsel for the Minister was that the very time consuming task of listening to or viewing the recordings might be avoided if evidence of the interaction of Mr H with his son was provided from other sources. That would avoid the need to decide whether it would be lawful to receive the recordings as evidence.
[26] Transcript of Proceedings (Youth Court of South Australia, McEwen J, 5 November 2018) 270 line 24-29, 272 line 16-21.
I also accept the correctness of the submission by the respondent that even if the Minister had conceded before Judge McEwen that the recordings were lawful, such a concession could not apply to subsequent recordings. The lawfulness of those recordings and their admission into evidence would need to be determined in light of the particular facts and the law in force at the relevant time.
I also do not accept the contention that the interchange between counsel for the Minister and Judge McEwen on 5 November 2015 was based upon the grant of ongoing approval by the Minister or the Department for Mr H to record his interactions with departmental staff. There is nothing whatsoever in the transcript that suggests counsel said any such thing.
I turn to the ruling of Doyle J in Nanosecond. Those proceedings related to an alleged breach of contract and various other causes of action. The plaintiff sought to rely upon covert recordings of 20 telephone conversations and meetings that were said to be relevant to the proceedings. Doyle J held that some of the recordings had been made “for the protection of the lawful interests” of the plaintiffs but others had not been and were thus unlawful. Most of the recordings had been made when the 1972 Act was in force.
Doyle J referred to the judgment of Doyle CJ in Thomas v Nash.[27] A central issue was whether the deceased mother of the defendant had capacity to make a will. The defendant sought to rely upon recordings he had made of conversations with his mother, and other family members, that were said to be relevant to this issue. The defendant acknowledged that he had made the recordings so that he could prove things in case that might later be to his advantage. Doyle CJ held that “I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage.”[28]
[27] (2010) 107 SASR 309.
[28] Ibid at [45].
Doyle J also referred in Nanosecond[29] to the decision of Branson J in the Federal Court in Violi v Berrivale Orchards Ltd.[30] That case was decided under New South Wales legislation where the relevant issue was whether the recordings were “reasonably necessary for the protection of the ‘lawful interests’ of Mr Violi.”[31] He had recorded various conversations with a Mr Pumpa so that he could publish the recordings, if he considered it necessary, to third parties should Mr Pumpa “not tell the truth about what was happening” or deny the existence of a contract. Branson J suggested by way of obiter dictum that the recording of a conversation intended to result in an oral contract would be made to protect the lawful interests of the party. Similarly, her Honour suggested that the recording of a threatening telephone conversation or a blackmail attempt would also be made to protect lawful interests. Her Honour concluded that recordings made while the parties were in dispute about contractual arrangements and their conduct towards each other, and for use in legal proceedings in connection with that dispute, were not reasonably necessary for the protection of lawful interests.
[29] [2018] SASC 116 at [93].
[30] (2000) 99 FCR 580.
[31] Ibid at 586 [25].
In light of those authorities Doyle J held that certain of the recordings that were in issue in Nanosecond had been made “for the general purpose of obtaining a reliable record, and in case it turns out to be advantageous at some future time. On the authorities, this is not enough to establish that the recording was for the protection of the plaintiffs’ lawful interests.”[32]
[32] [2018] SASC 116 at [109].
In the present case, at the time Mr H made the recordings that were subject to the adverse ruling by the Judge, it appears that there were no proceedings on foot in the Youth Court, although Mr H and Mrs H may well have intended to institute further proceedings (as they ultimately did). In my view, it is clear that Mr H simply made the recordings because he believed that they could be used to his advantage in proceedings. To adopt the words of Doyle CJ in Thomas v Nash, “a person [does not make a recording] to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage.”[33]
[33] (2010) 107 SASR 309 at 317 [45].
Consistently with the findings made by Doyle CJ in Thomas v Nash, Branson J in Violi v Berrivale Orchards Limited and Doyle J in Nanosecond, I consider that the Judge correctly found that the recordings had not been made to protect the lawful interests of Mr H or Mrs H. Accordingly, those recordings made in 2016 that recorded interaction between Mr H and Mrs H and Departmental staff which were made without their permission, were unlawful due to the combined operation of s 4 and s 7 of the 1972 Act. That Act remained in force until 17 December 2017. Until the repeal of the 1972 Act on 18 December 2017, the use of the recordings as evidence was prohibited by s 5.[34]
[34] Ibid at 318 [55].
Doyle J held in Nanosecond that the effect of s 16(1) of the Acts Interpretation Act 1915 (SA) (the AIA) was that the repeal of the 1972 Act did not affect the unlawfulness of anything done before its repeal.[35] I agree with that analysis. However, whether the 2016 Act prohibits the use of an unlawful recording made contrary to the 1972 Act is a different matter.
[35] [2018] SASC 116 at [72].
Doyle J further held in Nanosecond that the permissible use of recordings made when the 1972 Act was in force must now be considered by reference to the 2016 Act.[36] His Honour did not explain his reasoning on that point. For the reasons that follow, I take a different view of the matter.
[36] Ibid at [76].
At the time the relevant recordings were made in 2016 by Mr H, his action was unlawful as he did not have the permission of the other party to the conversation or interaction (being a Departmental staff member) and the recording was not made to protect his lawful interests. As I have already indicated, those actions continued to be unlawful after the repeal of the 1972 Act.
The prohibition upon use of a listening device to record a private conversation appears in s 4(1) of the 2016 Act. A series of exceptions to that prohibition appear in s 4(2). Of present relevance, s 4(2)(a)(ii) provides an exception where the use of the device is reasonably necessary for the protection of the lawful interests of the person making the recording. Neither that exception nor any of the other exceptions in s 4(2) apply in the present circumstances.
Section 6 also provides an exception to the prohibition in s 4(1) if a public interest test is satisfied. That exception is also not relevant in the present case. Accordingly, if the subject recordings had been made after the commencement of the 2016 Act, s 12 of that Act would prohibit the use, communication or publication of information or material contained in those recordings.
I turn to the question as to whether the prohibition on use of material imposed by s 12 of the 2016 Act also applies where that material was recorded before the 2016 Act commenced and while the 1972 Act was still in force. The important point is that s 12 of the 2016 Act prohibits the communication or publication of information or material derived from use of a surveillance device in contravention of Part 2 of the 2016 Act. Each of ss 4, 6 and 12 of the 2016 Act are included in Part 2.
An unlawful recording that was made at a time when the 1972 Act was in force has not been made in contravention of Part 2 of the 2016 Act. Such a recording was made in contravention of the 1972 Act rather than the 2016 Act.
The transitional provisions contained in Part 4 of Schedule 1 to the 2016 Act do not deal with this issue. It is therefore necessary to consider whether the issue is resolved by s 16 of the AIA. Unless the contrary intention appears, s 16 operates to save the operation of provisions in a repealed Act in certain circumstances. It provides as follows:
16—Saving of operation of repealed, amended or expired Act
(1)     Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
(a)revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b)affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
(d)affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e)affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2)    Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
(2a)   Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).
(3)     Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.
(4)     In this section—
legal proceeding includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.
It is necessary to consider each of the paragraphs in s 16(1). Paragraph (a) is clearly not relevant. Paragraph (b) applies to the doing, suffering or omission of anything prior to the repeal, amendment or expiry of an Act. In my view paragraph (b) would preserve the unlawfulness of a recording made contrary to a prohibition in the 1972 Act. In that respect, as I have already noted, I agree with the conclusion of Doyle J in Nanosecond. However, I do not consider that paragraph (b) goes so far as to render inadmissible under the 2016 Act a recording that was made contrary to the 1972 Act.
Paragraph (c) of s 16(1) provides that the repeal of an Act does not affect any right, interest, title, power or privilege or any status or capacity that was in operation prior to the repeal. There is a question as to whether a person who is the subject of a recording made contrary to the 1972 Act has a “right” not to have that recording admitted into evidence in legal proceedings over their opposition.
The answer to that question is provided by the judgment of the High Court in Rodway v The Queen.[37] Prior to its repeal a provision of the Criminal Code (Tas) provided that a person could not be convicted on the uncorroborated evidence of the victim of an alleged sexual offence. The defendant was charged with relevant offences that were allegedly committed at a time when the corroboration requirement was in force. However, that provision of the Criminal Code had been repealed prior to the defendant’s trial. The High Court (comprising Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) held that “[a] person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.”[38]
[37] (1990) 169 CLR 515.
[38] Ibid at 521.
The High Court in Rodway also overruled the decision of the Full Court of this Court in Attorney General’s Reference No 1 of 1988.[39] The High Court held that the effect of the amendment before the Full Court in Attorney General’s Reference No 1 of 1988 and also the amendment before the High Court in Rodway “were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation.”[40]
[39] (1988) 49 SASR 1.
[40] (1990) 169 CLR 515 at 523.
The High Court also considered the potential application of s 16(1)(c) of the Acts Interpretation Act 1931 (Tas). That provision is very similarly worded to s 16(1)(c) of the AIA. The High Court held that paragraph (c) of s 16(1) applied “only to preserve acquired or accrued rights and … the applicant had acquired no right to a particular mode of procedure at his trial.”[41]
[41] Ibid.
It is clear from the decision of the High Court in Rodway that the Minister did not have a “right” in the sense contemplated by s 16(1)(c) of the AIA to have recordings made contrary to the 1972 Act not to be admitted at trial.
Paragraph (d) of s 16(1) of the AIA provides that, in the absence of any contrary intention, the repeal of an Act does not affect any duty, obligation, liability or burden of proof that had been incurred or imposed or was liable to be incurred or imposed prior to its repeal. The clear effect of paragraph (d) is to preserve liability for prosecution under the 1972 Act for any offence against that Act that occurred prior to its repeal. However, I do not consider that paragraph (d) operates to preserve the prohibition upon use of a recording made contrary to the 1972 Act.
Paragraph (e) of s 16(1) of the AIA is expressed in terms that are relevantly indistinguishable from s 16(1)(e) of the Acts Interpretation Act 1931 (Tas). The High Court noted in Rodway that the Tasmanian provision operated in the same manner as the provision in the Acts Interpretation Act 1954 (Qld) that was considered by the High Court in Yrttiaho v Public Curator of Queensland.[42] The High Court observed in Rodway that in Yrttiaho the majority of the High Court held that the relevant provision “was restricted in its application to the preservation of the existence of the legal proceeding or remedy of which it speaks and that it did not preserve the procedure to be observed in the litigation.”[43] That observation is equally applicable to s 16(1)(e) of the AIA. Thus, I conclude that there is nothing in s 16 of the AIA which preserves the prohibition upon use of material that was unlawfully recorded contrary to the 1972 Act after the repeal of that Act. It is on that point that I disagree with the conclusion of Doyle J in Nanosecond.
[42] (1971) 125 CLR 228.
[43] (1990) 169 CLR 515 at 523.
Because of her uncertainty as to the continuing operation of the prohibition under the 1972 Act upon use of unlawfully recorded material, the Youth Court Judge considered whether the material recorded in 2016 contrary to the 1972 Act should be excluded by the exercise of the discretion identified by the High Court in Bunning v Cross.[44] The Judge held that the recordings should be excluded as the Departmental staff were unaware that their telephone conversations with Mr H and Mrs H were being recorded and the recordings of meetings and access visits were made contrary to express requests by the Departmental staff that there was to be no recording. In those circumstances, the Judge concluded that if the material was to be admitted it would amount to the Court condoning the actions of Mr H and Mrs H and would set a dangerous precedent.
[44] (1978) 141 CLR 54.
The leading judgment in Bunning v Cross was delivered by Stephen and Aickin JJ. Their Honours identified six considerations relevant to the exercise of the public policy discretion as to the admission of evidence gained unlawfully. Several of those considerations are relevant to the present matter. I refer to the fact that the conduct by Mr H and Mrs H was deliberate and occurred notwithstanding an express refusal of permission to make recordings. I also note that the recordings may have little, if any, evidentiary value. Recordings of conversations between Mr H and Mrs H cannot assist the Youth Court in making decisions about their two children. Recordings of access visits from some two years earlier may also be of little, if any, evidentiary value particularly if the recording does not cover every moment of every visit.

In R v Swaffield Kirby J held that a relevant consideration in exercising the public policy discretion in respect of the admission of unlawfully obtained evidence is whether the reputation and integrity of the judicial process might be damaged by condoning illegality or impropriety.[45] That consideration played an important part in the Judge’s decision to refuse to admit the recordings.
[45] (1998) 192 CLR 159 at [135].
For these reasons I consider that the Judge appropriately exercised her discretion to exclude the relevant recordings in accordance with the Bunning v Cross discretion.[46]
Adoption of earlier findings of fact
[46] In RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404 White J found that s 16(1) of the AIA operated to preserve the unlawfulness of a recording made contrary to the 1972 Act. His Honour applied s 138 of the Evidence Act 1995 (Cth) and ruled the evidence inadmissible. Thus, White J applied a statutory discretion on all fours with the Bunning v Cross discretion to exclude the evidence.
The Judge’s reasons
A further evidentiary question is whether the Judge was entitled to adopt the findings of fact made by this Court in H, A v Minister for Families & Communities[47] and by the Youth Court in Minister for Education & Child Development v JH, JH & L D-P.[48] Those earlier proceedings involved Mr H or Mr and Mrs H.
H, A v Minister for Families & Communities
[47] [2005] SASC 339.
[48] (Unreported, Youth Court of South Australia, McEwen J, 16 December 2015).
In H, A v Minister for Families & Communities, White J had agreed with and upheld findings made by a Youth Court Magistrate concerning Mr H, his former wife and his daughter B.[49] White J found that the finding by the Youth Court Magistrate that B had suffered physical and emotional abuse to such an extent as to place her physical or psychological development in jeopardy was appropriate. White J was also satisfied that Mr H had threatened violence to B and had threatened to blow up her school. His Honour clearly accepted the findings made by the Magistrate that the police had found B to be very filthy and wearing very filthy clothing which was too small for her. There was also no food in the house and the electricity had been disconnected. Mr H was subsequently detained under the Mental Health Act 1993 (SA). A report from the Glenside Campus of the Royal Adelaide Hospital noted that he was “extremely angry, agitated and hostile”. The assessing psychiatrist considered the most likely diagnosis to be personality dysfunction with litigious and hypomanic traits. Mr H admitted to a daily intake of one gram of cannabis. The Magistrate also found that Mr H had made consistent and continual threats to kill, bomb or harm institutions and individuals and had made threats against police, hospitals, doctors, lawyers, Ministers of the Crown, courts, public servants and the State. He had also expressed support for a terrorist organisation. The Magistrate further found that Mr H had assaulted his then wife in the presence of B. The latter had reported to her independent legal representative that Mr H hit and kicked his wife in her presence. There was also evidence that B’s diet was inadequate. A further finding by the Magistrate was that there was almost a total lack of appreciation by Mr H and his then wife that their behaviour may be detrimental to the welfare of B.
[49] [2005] SASC 339 at [35]-[51].
Unsurprisingly given those facts, White J held that the Magistrate had not erred in finding that it was appropriate to make an order placing B in the guardianship of the Minister until she reached the age of 18 years.
Minister for Education & Child Development v JH, JH & L D-P
The Judge adopted the findings of fact made by Judge McEwen in Minister for Education & Child Development v JH, JH & L D-P. Those findings were made in a judgement delivered after hearing a contested application brought by the Minister seeking long-term orders in respect of L. Judge McEwen made the following findings of fact:[50]
To sum up the situation as I find it to be, based upon the evidence before me:
·Mrs [H] has cognitive processing deficiencies and a childlike presentation. These attributes of Mrs [H] pose obstacles to her having the capacity to properly parent [L].
·These obstacles may not be insurmountable, if she accepts and utilises the supports that are available. These include the assistance of her mother, Mrs [R] [P], and also other scaffolding by relevant agencies.
·The Department has always expressed a willingness to work with the mother in addressing these issues, and improving her parenting to the requisite degree. For the mother to reach the point of being able to properly parent [L], it is crucial that she accept and embrace the supports that are available. It is unfortunate that she did not do this from the outset.
·Mr and Mrs [H] have a strong, mutually supportive relationship to each other.
·Unfortunately, however, when it comes to Mr [H]’s parenting deficiencies, Mr [H]’s issues, behaviour, presentation and responses, have compounded the problem. If he genuinely wishes to enhance the prospects of Mrs [H] parenting [L]; or of both he and Mrs [H] having a role in parenting [L]; he needs to rapidly gain insight into the effect of his behaviour; both directly upon [L], and indirectly upon [L] by its effect on other persons.
[50] (Unreported, Youth Court of South Australia, McEwen J, 16 December 2015) at [23].
The Judge concluded that it was appropriate to adopt the previous findings made by White J in 2005 and Judge McEwen in 2015. White J had adopted the findings made by a Youth Court Magistrate at trial and Judge McEwen made his findings after a trial. Her Honour concluded that “[t]here is no reason to think that a revisiting of these findings would result in different findings being made.” In reaching that conclusion her Honour relied upon the principles expressed by Hale J in Re B[51], by the Full Court of the Family Court in B & J[52] and by Tree J in Holgar & Stott.[53]
[51] [1997] 2 All ER 29.
[52] [2009] FamCAFC 103.
[53] [2017] FamCA 772.
The appellant’s submissions
The only contention advanced by Mr H, with the support of Mrs H, was that the Judge should not have adopted the previous findings made by White J in 2005 and Judge McEwen in 2015, because those findings were wrong. They submitted that witnesses in the earlier proceedings had committed perjury and criminal defamation. No particulars were supplied in support of those sweeping contentions.
The respondent’s submissions
The respondent submitted that it was nonsensical for the appellant to assert that the previous findings were “unproven” or “unfactual”. The appellant had not identified any appealable error in the exercise of the discretion to adopt the previous findings.
Consideration
It is necessary to refer to the three authorities relied on by the Judge in support of her conclusion that it was appropriate to have regard to the findings made in the earlier proceedings.
Re B was decided by Hale J in the Family Division of the High Court of Justice in England. The proceedings concerned custody of two children. The particular issue before Hale J was whether the father of the children was bound by a finding that he had sexually abused other children. Hale J held that it was not appropriate to apply strictly the doctrine of issue estoppel in cases involving care proceedings. The function of the court in such cases is inquisitorial rather than adversarial, having regard to the paramount importance of the welfare of the child. Flexibility is an essential feature of such proceedings. The court is not bound to allow the parties to call evidence on each and every issue which may be relevant in the proceedings. The discretion of the court to control the conduct of the hearing is an important feature of its investigative approach. The court will decide whether to allow any finding of fact which is relevant to a person’s suitability to care for children.
The judgment of the Full Court of the Family Court (comprising May, Thackray and Strickland JJ) in B & J also concerned a custody dispute.[54] In a joint judgment May and Strickland JJ referred with approval to the judgment of Hale J in Re B.[55] Thackray J also relied upon the observations of Hale J.[56]
[54] [2009] FamCAFC 103.
[55] Ibid at [100]-[103].
[56] Ibid at [167]-[169].
In Holgar & Stott, Tree J adopted findings of historical violence by the father made by another Judge in earlier proceedings. However, Tree J declined to adopt findings previously made about the state of mind of the mother and grandmother. His Honour observed that the historical findings about their state of mind were of little assistance in deciding their current state of mind. Tree J referred with approval to the observations of Hale J in Re B and followed the decision of the Full Family Court in B & J.
While neither this Court nor the Youth Court is bound by a decision of the Full Family Court, such a decision has strong persuasive authority and should generally be followed in relation to matters that fall within its specialised jurisdiction, e.g. the custody of children. Although the Youth Court and the Family Court exercise their jurisdiction in accordance with materially different legislation there are highly significant analogues between the relevant provisions of the Family Law Act 1975 (Cth), the Children’s Protection Act 1993 (SA) and the Youth Court Act 1993 (SA). Section 45 (1)(a) of the Children’s Protection Act provides that the court is not bound by the rules of evidence but may inform itself as it thinks fit. Section 69ZX(3) of the Family Law Act provides that the Family Court may, in child related proceedings, receive into evidence the transcript of evidence in any other proceedings before that court, another court or a tribunal and draw any conclusions of fact from that transcript that it thinks proper and may also adopt any recommendation, finding, decision or judgment of any such body. Thus, there is no essential difference between the power of the Youth Court and the Family Court to receive into evidence and rely upon findings made in other proceedings.
Section 45 of the Children’s Protection Act clearly empowered the Judge to receive into evidence the findings made in the earlier proceedings in which Mr H and Mrs H were involved. I find that the Judge did not err in concluding that the discretion as to whether or not earlier findings should be received into evidence was to be exercised in accordance with the principles expressed in Re B, B & J and Holgar & Scott. In considering an appeal from the exercise of that discretion I must apply the principles stated by the High Court in House v The King.[57] In other words, I should give due deference to the exercise of her Honour’s judicial discretion and only intervene if there is either a process error or an outcome error.
[57] (1936) 55 CLR 499.
I do not consider that there was either a process error or an outcome error. The only objection advanced by Mr H and Mrs H to the adoption of the earlier findings is that they are said to be wrong. However, Mr H did not appeal against the adoption by White J in 2005 of the findings made by a Magistrate and neither he nor Mrs H appealed against the orders made by Judge McEwen in 2015. Other than a generalised assertion that false evidence had been given in those earlier proceedings, no basis has been advanced to suggest why the findings were wrong, unreliable or irrelevant. I consider that the decision made by the Judge to rely on the earlier proceedings was plainly both lawful and correct.
I take the opportunity to observe that care must be taken before deciding to adopt earlier findings. Most importantly, as the approach adopted by Tree J in Holgar & Stott demonstrates, the passage of time may render earlier findings irrelevant or less significant. However, that is not an issue in the present appeal as nothing beyond mere assertion had been put before the Judge or this Court to call into question the correctness or continuing relevance of the earlier findings.
Conclusion
I find that there was no error made by the Judge in summarily dismissing the application made by Mrs H to vary the consent orders made on 24 January 2017. I also find that the appeal is not competent in so far as it seeks to challenge the correctness of the two rulings concerning the admissibility of evidence. Nevertheless, I have considered the rulings and found them to be correct.
The appeal is dismissed.