D-P v Minister for Child Protection

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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…

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Details
Case
[2018] SASC 149
Decision Date

CaseChat Overview and Summary

In the case of D-P v Minister for Child Protection, the primary dispute revolves around the guardianship and supervision orders concerning two children, L and E, who were born to Mr and Mrs H. The Minister for Child Protection sought long-term guardianship orders for both children, which led to consent orders being made in the Youth Court on 24 January 2017. These orders included a long-term guardianship order for L and a 12-month supervision order for E, with restrictions on contact between the children and their parents, Mr and Mrs H. Mrs H later sought to vary or set aside these orders, but the application was dismissed by the Youth Court. Subsequently, Mr H appealed against these orders to the Supreme Court of South Australia, while Mrs H did not pursue an appeal. The legal issues at the core of this case pertain to the admissibility of previous findings and evidence, the competence of the appeal, and the best interests of the children in the context of guardianship and supervision orders.

The Supreme Court examined whether the appeal was competent, particularly regarding the admissibility of evidence and prior findings. The Court concluded that the appeal against the rulings on the admissibility of evidence was not competent, as such rulings are considered incidental and not subject to appeal. Despite this, the Court reviewed the evidentiary rulings for completeness and to address important principles concerning the practice of the Youth Court. The Court found no error in the Judge’s decision to rely on previous findings and to exclude the recordings submitted by Mr H. The Court underscored that the Judge had rightly considered the best interests of the children, particularly L, who had been in a stable foster placement since birth. The report from the Departmental social workers highlighted the risks of removing L from his current environment, which was deemed crucial for his social, psychological, and emotional development.

The Supreme Court ultimately dismissed the appeal, affirming the Youth Court's decision. The Court held that Mrs H had not demonstrated any material change in circumstances warranting a variation of the orders. The best interests of L, as determined by the Judge, were that he remain in his current placement to avoid significant psychological harm. Consequently, the appeal was dismissed, and the original orders remained in effect, safeguarding the children's welfare and stability.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.