H, JR v Department for Child Protection & Anor
[2017] SASC 121
•18 August 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal)
H, JR v DEPARTMENT FOR CHILD PROTECTION & ANOR
[2017] SASC 121
Judgment of The Honourable Justice Nicholson
18 August 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CUSTODY - APPEALS
Appeal pursuant to section 22 of the Youth Court Act 1993.
Following an application by the Minister for Education and Child Development pursuant to sections 37 and 38, a trial was listed in the Youth Court to determine whether care and protection orders with respect to the two very young children of the appellant father should be made. These included orders placing each child under the guardianship of the Minister and orders in relation to parental access with the children. After the trial commenced, the appellant expressed a wish to take no further part in the trial and removed himself. The mother (the second respondent) and her counsel remained present. Following the appellant’s departure, final orders in terms that differed, in part, from those sought in the application were made by consent of all parties present including an order that the appellant refrain from having any contact at all with the children. The appellant has appealed against all of the orders made.
Held:
1. There has been no error on the part of the Magistrate that could be said to have given rise to a miscarriage of justice.
2. Appeal dismissed.
Children’s Protection Act 1993 s 22, s 27, s 37, s 38, s 39, s 40, s 45, Pt 5, Div 2; Youth Court (Children’s Protection) Rules 2012 r 9, referred to.
H, A v Minister for Families and Communities & H, J v Minister for Families and Communities [2005] SASC 339; Police v A, TG [2006] SASC 299; Tazroo v Police [2002] SASC 155; Allison v Police [2005] SASC 447; L, G & Anor v Minister for Families and Communities & Ors (2012) 113 SASR 152; Minister for Community Welfare v Hillier (1987) 47 SASR 553; Ventura v Sustek (1976) 14 SASR 395, considered.
H, JR v DEPARTMENT FOR CHILD PROTECTION & ANOR
[2017] SASC 121Youth Court Appeal
NICHOLSON J.
Introduction
JH (the appellant) has appealed against care and protection orders with respect to his two children made by a Magistrate, sitting in the Youth Court of South Australia, on 24 January 2017.
On 26 October 2016, the Minister for Education and Child Development (the Minister and first respondent to the appeal and the Department, respectively) instituted a care and protection application pursuant to sections 37 and 38 of the Children’s Protection Act 1993 (the Act). Orders to the effect that the two children, LH (a male child, approximately 18 months old as at the time of the application) and EH (a female child, approximately six months old as at the time of the application) be placed under the guardianship of the Minister until they obtain the age of 18 years of age were sought. Orders permitting JD-P (the mother and second respondent to the appeal) and JH to have restricted and supervised access to the children were also sought in the application.
As at the date of the Minister’s application, LH was in a stable and secure environment with full time carers having been removed from his mother’s care at birth. The appellant and JD-P separated on the day LH was born and have lived apart thereafter, although according to the appellant, they enjoy a good relationship.
The grounds for the application were that there was a significant risk that the children will suffer serious harm to their physical, psychological or emotional wellbeing against which they should have, but do not have, proper protection and that the parents, as guardians of the children, were unable to care for and protect the children or were unable to exercise adequate supervision and control over the children.
The matter first came before the court on 3 November 2016 at which time the Magistrate made interim orders essentially in the terms as sought in the application.
On 24 January 2017, the Magistrate made final orders in the following terms.
It is ordered:
1.The child [LH] be placed under the guardianship of the Minister for Education and Child Development until the said child attains 18 years of age.
2.[JD-P] have access with the child, [LH], subject to the wishes of the child, at such times, dates and places as may be agreed between [JD-P] and the Minister, such access to be supervised at the discretion of the Minister by a nominee of the Minister.
3. That the child [EH] be under the supervision of the Chief Executive of Department for Child Protection (“the Chief Executive”) for a period of 12 months.
4.That the mother [JD-P] is to enter into a written Undertaking for a period of 12 months as follows:
(a) To reside with the child [EH] at [a certain person’s residence];
(b) To permit the Department for Child Protection (“DCP”) workers to enter the residence where [EH] resides for the purposes of monitoring [EH’s] welfare and ensuring that the residence is in adequate condition and that [EH’s] sleeping arrangements are safe. Such checks may be without notice;
(c) To permit and make [EH] available for medical examination, assessment and/or treatment as required by DCP;
(d) To ensure that [EH] is safely and appropriately supervised at all times;
(e) To attend all meetings with DCP as scheduled unless excused on account of illness, as verified by a medical practitioner or as otherwise agreed by DCP;
(f) To make [EH] available for supervised sibling access between [LH] and [EH] from time to time, as requested by DCP;
(g) To not permit the father to have access with [EH] in any form, including telephone or other video communications directly and indirectly;
(h) To notify DCP of any changes to [JD-P’s] situation, such as a change of phone number, within five working days;
(i) To acknowledge that if this agreement is breached by [JD-P], DCP will immediately assess the safety and risks to [EH] and remove [EH] if required.
5.A refraining order in respect to the father. The terms of that order are that [JH] is to refrain from having any contact at all with the children [LH] and [EH].
6.[JD-P] is not permitted to video or voice record or broadcast any access in respect of [LH] or [EH], or any other dealings with DCP, without the consent of DCP.
JH has appealed against all of the final orders made. JD-P has not appealed against any of the orders. She was legally represented at all hearings before the Magistrate and the final orders were made with her consent. The children were also separately legally represented at all hearings and, through their separate legal representation, consented to the final orders.
The orders, as made, differed in a number of respects from those as sought in the application. Orders 3 and 4 concerning EH were in a less extreme form than originally sought (guardianship of the Minister). Orders 5 and 6 were new.
At the appeal, JH represented himself, counsel appeared on behalf of the first respondent (the Minister), counsel appeared on behalf of the second respondent (JD-P) and counsel appeared on behalf of the children. All parties made submissions and the first and second respondents and counsel for the children all resisted the appeal.
JH’s grounds of appeal are in these terms.
1.Information not made available and what was available was given on Thursday court held Tuesday.
2.Unproven allegations used to find outcome by judicial officer.
3.Orders contradict Child Protection Act of South Australia.
4.Order violate UN charter.
During the appeal, the appellant advised the Court that he was not pursuing orders in his favour for “guardianship or custody” of either child but that he wanted his son to be returned to JD-P. The appellant was particularly concerned to obtain a removal of the restrictions as to access imposed on the children’s mother. In these respects, the appellant appeared to have been arguing on her behalf, contrary to her wishes. Given that JD-P consented to the orders, a question as to the appellant’s standing to appeal in respect of orders 1 to 4 and 6 arises. However, I have decided to dismiss the appeal for the reasons that follow and, as such, it is not necessary to resolve this issue.
Statutory framework
Section 37 of the Act makes provision for the Minister to make various applications to the Youth Court. Section 37(1) is in these terms:
(1)If the Minister is of the opinion—
(a) that a child is at risk; and
(b) that an order under this Division should be made in respect of the child to secure his or her care and protection,
the Minister may apply to the Youth Court for an order under this Division.
Section 38 prescribes the Youth Court’s power to make orders. Section 38 is in the following terms.
(a1)The Court may, on an application under this Division, make an order under this section if the Court is satisfied—
(a) that the grounds of the application have been made out; and
(b) that an order under this section should be made in respect of the child.
(1)In an order under this section, the Court may exercise 1 or more of the following powers:
(a) the Court may require a parent, guardian or other person who has the care of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive or some other specified person or authority for the duration of the undertaking;
Example—
A parent, guardian or other person could, for example, be required to enter into an undertaking to undergo treatment for drug abuse, to submit to periodic testing for drug use and to authorise the release of information regarding such treatment, and the results of such testing, to the Chief Executive.
(b) the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i)a guardian of the child;
(ii)some other member of the child's family;
(iii)the chief executive of a licensed children's residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(iv)the Minister;
(v)any other person that the Court thinks appropriate in the circumstances of the case;
(c) the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d) the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(e) the Court may direct a party to the application to do one or more of the following:
(i)to cease or refrain from residing in the same premises as the child;
(ii)to refrain from coming within a specified distance of the child's residence;
(iii)to refrain from having any contact with the child except in the presence of some other person;
(iv)to refrain from having any contact at all with the child;
(ea) if an instrument of guardianship or a restraining notice is in force and the application has been made under section 37(3)—the Court may revoke the instrument or notice;
(f) the Court may make consequential or ancillary orders—
(i)providing for access to the child; or
(ii)providing for the way in which a person who has custody or guardianship of the child under an order of the Court is to deal with matters relating to the care, protection, health, welfare or education of the child; or
(iii)requiring a parent, guardian or other person who has the care of a child to undertake specified courses of instruction, or programmed activities, in order to increase his or her capacity to care for and protect the child; or
(iv)dealing with any other matter.
(2)Before the Court makes an order giving custody or guardianship of a child to a person who is not a parent of the child, the Court must be satisfied—
(a) that there is no parent able, willing and available to provide adequate care and protection for the child; and
(b) that the order is the best available solution having regard to—
(i)the child's need for care and protection (including emotional security); and
(ii)the child's age, developmental needs and emotional attachments.
(2a)If a child is to be placed in guardianship the Court must consider the importance of settled and stable living arrangements for the child and, as a general rule, a long term guardianship order (ie an order under subsection (1)(d)) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
(3)If the Court finds that a child is at risk because a person other than a guardian with whom the child resides has abused, neglected or threatened the child, the Court cannot make an order removing the child from the guardianship or custody of the guardians with whom the child resides unless satisfied that they knew, or ought to have known, of the abuse, neglect or threats.
(4)If the Chief Executive or some other specified person or authority is, by order of the Court, to supervise a child who has entered into an undertaking, the supervisor may exercise such powers as the Minister authorises either generally or in relation to a particular supervisor.
Each of the final orders made on the application were made pursuant to one of the powers provided for under section 38.
Section 39 of the Act obliges the court to conduct proceedings under the Act expeditiously and with due regard to the degree of urgency referrable to a particular case. Section 39 also places limitations on the court’s general power of adjournment in relation to an application such as the one in question. It is specifically provided that the power of adjournment cannot be employed “so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks”. Section 39 is in these terms.
(1)All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
(2)The Court—
(a) cannot exercise its general power of adjournment in relation to an application under this Division so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks; and
(b) on any adjournment, may make such of the orders it is empowered to make under this Division as it thinks appropriate, to have effect for the period of the adjournment and any subsequent adjournment (but nothing in this subsection prevents the Court from varying or revoking such an order or making a further order on any subsequent adjournment).
Section 45(1) of the Act provides that in any proceedings under the Act, the court is not bound by the rules of evidence, may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The factual background to the application as alleged by the Minister
The particulars of the factual allegations in support of the grounds of the Minister’s application and as set out in the application are as follows:
• The child, [LH], was removed from the care of his parents at birth due to concerns relating to the father’s volatile behaviour, criminal offending, history of substance misuse and unstable mental health; and concerns around the impact of the mother’s intellectual functioning upon her parenting capacity and her unstable mental health.
• Following her birth, the child, [EH], was subject to an Investigation and Assessment (Custody) Order, however [EH] was placed with the mother, at the maternal grandmother’s house. A subsequent Supervision Order was granted, requiring the mother to sign Undertakings to ensure [EH’s] safety. The mother has since breached a number of these Undertakings.
• The father’s eldest daughter [B] was removed from the care of the father and her mother [AH] and placed under long term Orders in 2005. The concerns were related to neglect, emotional and physical abuse, substance misuse and exposure to significant domestic violence between the parents.
• The father has a significant criminal history, namely for offences of violence. Such offences, include threatening to kill both a local Member of Parliament and a Families SA worker. The father has spent significant periods of time in prison as a result of his offending.
• The father has a significant and long-standing history of mental illness, with a diagnosis of Bipolar Disorder and at times presents with psychotic symptoms. The father’s mental health issues impact significantly upon his ability to provide a safe and stable environment for the children. The father has been hospitalised on multiple occasions as a result of his unstable mental health. The father is adamant that authorities and Government departments are conspiring against him.
• Whilst the father was detained at James Nash House in 2006, his former wife [AH] passed away due to post seizure complications connected to her diagnosis of Lennox Gestaut Syndrome, which is an incurable severe form of Epilepsy. The father believes his arrests and past Court interventions are a conspiracy to cover up mistakes made by medical practitioners in relation to the death of [AH] and of his second child [A] .
• The father has not been able to demonstrate any meaningful engagement with the Department or other involved services and further, has been hostile, threatening and verbally aggressive towards Families SA workers.
• The father has been unable to demonstrate an awareness of the impact and associated risks of his volatile behaviour on a child.
• The father’s previous relationship with his first wife [AH] was characterised by domestic violence perpetrated by the father, to which violence the child [B] was exposed. The father has subsequently displayed controlling behaviour toward the mother, [JD-P], hence Families SA hold concerns about the safety of the mother and the children in the presence of the father.
• The father has demonstrated an inability to relate appropriately to a child, or to understand a child’s developmental needs. For example, the father has expressed a strong desire for [LH] to be exposed to punk heavy metal music, as opposed to The Wiggles.
• The father has a past history of illicit substance misuse. The father has self-reported that he frequently exposed his eldest daughter [B] to a high level of Marijuana in the family home environment, whilst she was a toddler.
• The mother has an intellectual disability, which causes delays in processing and retaining information and which subsequently impacts upon her parenting capacity. Families SA consider that the mother, of her own accord, is unable to effectively meet the needs of either of her young children and has been observed to lack understanding of a child’s cues and needs, thus is unable to respond accurately.
• The mother has been diagnosed with Epilepsy. Families SA are unsure whether the mother could relapse in times of high stress and are subsequently unsure about whether the mother’s Epilepsy places a risk to the children if alone in her care.
• The mother has long standing mental health issues, including suicide ideation, anxiety, depression and anxiety, which impact upon her ability to provide safe and stable care for the children. In 2015 the mother claimed she has multiple (8) personalities, including a 150 year old vampire and a 12 year old girl.
• The mother has demonstrated an inability to prioritise the needs of the children above her relationship with the father. The mother continuously denies that the father’s offensive behaviours are an issue. Families SA do not consider that the mother has the requisite protective capacity in order to protect the children from the father’s volatile behaviour and impact of same.
• The mother has not been able to demonstrate any meaningful engagement with the Department or other involved services and further, has been hostile and verbally aggressive toward Families SA workers.
• The child, [LH], has exhibited concerning responses towards the mother’s presence during access, despite having had regular and frequent access visits with the mother since the time of his birth.
• Families SA do not consider that the mother, nor the maternal grandmother [RP] possess the requisite protective capacity to effectively protect the children from the father’s volatile behaviours.
• In 2001, Families SA received information that the mother had disclosed that she had been sexually abused by her maternal grandfather at the age of 6 years. The maternal grandmother [RP] refused to allow the mother to be interviewed by Child Protection Services to confirm these allegations. Concerns were subsequently raised that [RP] may not be protective of her daughter.
• Families SA consider that a long-term Guardianship Order is necessary and in the best interests of both children, in order to ensure their ongoing safety and wellbeing, and to enable them to reach their full potential.
It was recorded on the application that the Department had been unable to hold a Family Care Meeting despite reasonable endeavours to do so. The application was also endorsed, not surprisingly given the factual allegations relied on, with a requirement for an order to be made without delay.[1]
[1] See section 27(2) of the Act.
Chronology of proceedings in the Youth Court
The matter first came before the Youth Court on 3 November 2016. As earlier indicated, interim orders were made on that date. The matter was adjourned to 17 November 2016 in order to permit counsel for the mother to obtain further instructions and for the appellant to obtain legal advice. On 17 November 2016, the matter was further adjourned essentially in order to permit counsel for the appellant, recently engaged, to obtain further instructions.
The matter next came before the court on 30 November 2016. Again, all parties and the children were represented. The matter was adjourned for a pre-trial conference to 20 December 2016 and the trial was listed for 24 January 2017. On 19 December 2016, the appellant filed a response to the allegations made by the Minister as well as a document outlining his list of witnesses and a synopsis of evidence. On 20 December 2016, the Minister filed a list of witnesses and a synopsis of evidence. At the pre-trial conference on 20 December 2016, counsel for the appellant advised the court that trial funding had not yet been secured and the matter was adjourned to the trial date. On 10 January 2017, the mother filed a response to the Minister’s application.
The trial date of 24 January 2017 was almost 13 weeks after the date of the Minister’s application (25 October 2016). The Magistrate noted on the court record that this trial date was “outside of the 10 week rule”. In terms of applying the so called “10 week rule” it is first necessary to determine the date of the “commencement of the hearing” (see section 39(1)(a)). The practical difficulties that can arise in this context and the way in which they have been addressed in the past by the Youth Court were discussed at some length by White J in H, A v Minister for Families and Communities & H, J v Minister for Families and Communities.[2] His Honour’s observations on this topic, although lengthy, are worth repeating.[3]
[2] [2005] SASC 339.
[3] H, A v Minister for Families and Communities & H, J v Minister for Families and Communities [2005] SASC 339 at [55]-[61].
There are a number of matters arising in connection with the conduct of the proceedings in the Youth Court which warrant separate comment.
Adjournment of the Proceedings: s 39
The subject matter of an application pursuant to s 37 of the CPA makes it highly desirable that the proceedings be heard and determined expeditiously. That desirability is made explicit in s 4(4):
All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
The principle is further confirmed by s 39(a) of the CPA which constrains the Youth Court’s general power of adjournment. It provides:
The Court –
(a) cannot exercise its general power of adjournment in relation to an application under this Division so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks; …
Each of s37, s 38 and s 39 are found in Division 2 of Part 5 of the CPA.
In short, it is a requirement of the CPA that proceedings should be heard and determined expeditiously and that no more than 10 weeks should elapse between the lodgement of the application and the commencement of the hearing.
In the present case, the application of the Minister was lodged on 16 December 2004 and the hearing before the Magistrate commenced on 9 May 2005, ie, more than 20 weeks later. Counsel for the Minister informed me that it was the practice of the Youth Court to take an opening from the Minister within the period of 10 weeks and then to adjourn the “substantive trial” to a later date. That practice had been followed in this case. There had been a hearing on 10 January 2005, ie, within the 10-week period at which nothing more had occurred than the provision to the Court of a written opening. The matter was then adjourned for trial on 9 May 2005. It was suggested that this was the way in which the Youth Court “coped” while still complying with the restraint imposed by s 39(a).
The precise meaning of s 39(a) is unclear. The “general power of adjournment” to which it refers is probably a reference to the power of adjournment vested in the Youth Court by s 16 of the Youth Court Act 1993. It may also be a reference to the implied power to adjourn proceedings which is vested in a court.[4] This would mean that any “specific” power of adjournment would be unaffected by s 39(a). However, there does not seem to be any specific power of adjournment vested in the Youth Court in relation to proceedings brought pursuant to s 37 of the CPA. I note that the Youth Court is vested specifically with power to adjourn applications brought pursuant to s 21 of the CPA for the examination and assessment of a child.[5] But there is no equivalent in Part 5 of the CPA. It is not clear whether the Youth Court now has a discretion to adjourn proceedings in the circumstances considered by the Full Court of this State in A v Minister of Community Welfare and Crowe[6] (ie, where a parent was facing criminal charges in respect of the same conduct on which the Minister relied in bringing the application for guardianship). In addition, it is possible that the phrase “commencement of the hearing” in s 39(a) is capable of more than one meaning. It may refer to the precise moment in time a hearing commences (whether by the taking of an opening or by the hearing of evidence) or it may refer to the occasion when the Court commences its consideration of the application.
These matters were not the subject of any detailed submissions before me. It is not appropriate, therefore, for me to express any concluded views about the meaning of s 39(a). However, I do have concerns as to whether what occurred in this case on 10 January 2005 was the “commencement of the hearing” within the meaning of that expression in s 39(a). A short formal hearing followed by a lengthy adjournment before any evidence is taken does not presently seem to me to be the kind of “commencement of hearing” to which s 39(a) refers. Apart from that there seems to me to be an issue about the appropriateness of the Youth Court, as a matter of practice, holding a hearing for the purpose of receiving only a formal opening if that is done with no intention of proceeding within the 10‑week period with the trial or for the purposes of circumventing the constraint imposed by s 39(a). If, as counsel submits, this is a practice of the Youth Court, it would be appropriate, in my respectful opinion, for the Youth Court to review it.
I, with respect, reiterate the concerns raised by White J. However, I make two observations concerning the present case. First, I have little doubt that a hearing of the Minister’s application did “commence” on 24 January 2017. However, and second, this commencement of the hearing occurred some 13 weeks after the filing of the application.
[4] R v Kelly; ex parte Harvey (1985) 38 SASR 93.
[5] CPA, s 23.
[6] (1988) 12 Family Law Reports 117.
The course of the trial – 24 January 2017
On the day of the trial, all parties, including the children, were legally represented except the appellant who was representing himself. Given the nature of previous interactions between the appellant and various judicial officers, arrangements had been made for him to be present in a courtroom in the Adelaide Magistrates Court and to appear at the hearing in the Youth Court by audio-visual link.
Whether, as a result of funding or other issues, the appellant had been unable to retain his legal representation. At the commencement of the hearing before the Magistrate, the appellant sought an adjournment for two weeks in order to give himself further time to prepare for the trial. Her Honour did not formally rule on the application, although she attempted to assure the appellant that he would be afforded sufficient time to properly conduct his case. Her Honour did not formally rule because she was given little opportunity to do so. The limited extent of the appellant’s involvement at the trial is apparent from the transcription of the opening exchange.
HER HONOUR: At the Adelaide Magistrates Court, would you just tell me your name thanks.
JH:My name is [JH]. I'm the father of the two abused children.
HER HONOUR: All right, thanks, Mr [H]. Now you are appearing for yourself today, is that right?
JH:Yes. Can we get this done pretty quickly? Look, I've got 11 audio video recordings of all my accesses. I have access notes that correspond with those videos. I have a reunification report; I want to submit that into evidence.
HER HONOUR: Mr [H] -
JH:I only got -
HER HONOUR: Mr [H], right.
JH:Yes.
HER HONOUR: Mr [H], all I'm asking you at the moment is whether you are representing yourself today. Is that right?
JH:Yes, and I want an adjournment, your Honour, for two weeks your Honour, because I only got the paperwork on Thursday at 6 o'clock and I've gone through the rubbish that they've written about me and I've got to call more witnesses than what I had on my list that I was late putting in already. So because of that -
HER HONOUR: Mr [H], there will be no problem about you calling witnesses because there will be plenty of time to do that so you don't need to concern yourself about that part of things.
JH:I have to subpoena them; there's doctors, lawyers, and I still haven't read the paperwork properly. On Thursday afternoon at 6.30 I got served two books of about 600 pages and I dispute everything that's written about me in there except maybe the psychiatrist reports that are old.
HER HONOUR: Mr [H], there's absolutely no reason for you to be yelling like that. We can all hear you quite clearly and I know that you might be somewhat distressed about your children's situation but there's absolutely no reason for you to be yelling like that.
JH:Well your Honour my child has contracted Herpes whilst in the care of the Minister. He's had numerous injuries every time we see him at family ... he had the injuries whether it's a pinch mark or a bruise or black eye or a cutting of the fingers and it's been -
HER HONOUR: Mr [H], all right, okay. We're going to start a trial now but I'm going to ask the other people here whether or not there's anything they wanted to do before they do what is called their opening and then the witnesses are called. But there will be plenty of time for you to call your witnesses.
JH:Your Honour, I have 30 gigabytes of DVD and audio that you should be aware of and you should be totally aware of what is on those disks.
HER HONOUR: Mr [H], you are entitled to present your case in the usual way.
JH:Your Honour, I want to go to the Supreme Court.
HER HONOUR: But really just carrying on like this is not assisting your case at all.
JH:I want to go to the Supreme Court. I'm calling it error in law and I am letting you do it. I will send in the appeal form from the Supreme Court.
HER HONOUR: All right.
JH:Here's my evidence, your Honour. It is before the court. I have been defamed, libelled and slandered and I have let you. Thank you very much, your Honour.
HER HONOUR: All right, thank you.
JH LEAVES COURT 10.02 A.M.
Immediately after the appellant left the Magistrates Court, the Magistrate made arrangements for the materials left behind by the appellant to be bundled up by a sheriff’s officer and brought to the Youth Court where they were marked for identification, MFI F1.
In addition, counsel for the mother placed on record that she was separately represented and that the appellant was not speaking on her behalf. The Magistrate spoke further with the sheriff’s officer at the Magistrates Court and received confirmation that the appellant had left the building. According to the transcript, the Magistrate was concerned to ensure that the appellant had not had second thoughts about wishing to stay and take further part in the trial. Upon her Honour reaching the view that the appellant did not wish to take further part in the proceedings, the audio-visual link was disconnected and the trial proceeded.
Discussions ensued with counsel for the Minister and counsel for the mother concerning the obtaining of additional psychological reports. There was also a discussion concerning the adequacy of the Minister’s disclosure of relevant materials. An agreed position was put to the Magistrate on behalf of all parties that the Minister should open the case and commence to adduce evidence but that the trial should be adjourned part heard in order to provide all parties with further time sufficient to enable them to be in a position to complete the hearing.
Counsel for the Minister opened the Minister’s case at some length and took the court to the documentary evidence in support of the case as contained in the trial book which had been provided in advance to all parties. The two volume trial book was tendered as exhibit M2. Counsel indicated that the Minister would call three witnesses to give oral evidence, a social worker case manager, a consultant social worker and a clinical psychologist.
Following the opening, counsel for the Minister called the first witness, a social worker employed with the Department. At the conclusion of her evidence in chief, the trial was adjourned to enable the parties then present to engage in settlement discussions and also for enquiries to be made with the registry for a suitable date for the resumption of the trial.
The adjournment lasted a little under two hours following which the Magistrate was advised that the parties had reached agreement. The agreement was to the effect that the mother would not oppose orders as proposed by the Minister but without admission with respect to any of the allegations. The legal representative of the children also conveyed to the Magistrate her support for the orders as proposed. The Magistrate made the orders in the form set out earlier in these reasons.
The appeal
By section 22 of the Act, an appeal against any judgment given by a Magistrate of the Youth Court, of the nature as given in this case, lies to this Court constituted by a single Judge in accordance with the rules.[7] Section 22 further provides that, on appeal, the appellate court: may confirm, vary or quash the judgment subject to the appeal; may remit the matter for hearing or further hearing; and may make any other order including as to costs that may be necessary or desirable in the circumstances.
[7] Section 22(2)(b) provides:
If the judgment is given by a Magistrate –
(i) in the case of an interlocutory judgment – the Judge of the court; or
(ii) in the case of an action relating to a major indictable offence – the Full Court of the Supreme Court; or
(iii) in any other case to the Supreme Court constituted of a single Judge…
The Full Court in Police v A, TG[8] has determined that such an appeal is in the nature of a re-hearing.[9] The function of a court in the case of an appeal by re-hearing was explained by Lander J in Tazroo v Police.[10]
Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.
[8] [2006] SASC 299.
[9] At [12]-[15] (Sulan J with whose reasons Perry and Nyland JJ agreed).
[10] [2002] SASC 155 at [18]-[19] and see also, for example, Allison v Police [2005] SASC 447 at [77]-[81].
However, in this case it is not appropriate that I, sitting as a Judge on appeal, should conduct a re-hearing in the sense just described. The matter below did not proceed to a full hearing on the merits. The orders were entered by consent but with the Magistrate having had regard to the prosecution’s documentary case, albeit untested, which, by inference at least, satisfied the Magistrate that the orders should be made. In these circumstances, it would not be appropriate for me to review the evidence before the Magistrate, incomplete as it was, nor to receive by way of fresh or new evidence the substantial amount of material that the appellant had initially wished to put before the Magistrate (exhibit MFI F1).[11] This appeal process is not a means by which the appellant can have a full trial on the merits where none took place in the court below.
[11] On my understanding of the nature of this material, it cannot be assumed that all or any of it would have been admitted into evidence.
Whilst no determination on the merits was arrived at by the Magistrate, her Honour did have before her a substantial body of documentary evidence as to the Department’s experience over a number of years with the appellant, the children and the children’s mother in support of the factual basis relied on in the Minister’s application, as set out earlier. This documentary evidence included the appellant’s criminal record and a substantial quantity of expert assessments and reports from social workers, psychologists and psychiatrists. The documentary record relied on by the Minister did provide substantial support for the factual basis of the Minister’s application, set out earlier in these reasons.
Following notification that the matter had resolved, the Magistrate indicated to the mother her view that the orders were “really in the best interests of both children” and that there was “quite a lot of material that justifies this order being made”.
Nevertheless and notwithstanding the views expressed by the Magistrate, the orders were made, ultimately, by consent of all relevant parties with the exception of the appellant. It was important that the trial commence on the day listed for hearing which was already almost three weeks beyond the 10 week period following the lodging of the application. The matter had been listed for only the one day and it was inevitable that it would need to be adjourned part heard. Had the appellant remained, the adjournment that he sought in order to prepare his defence would inevitably have followed. Had the appellant remained, and save for a change of heart on his part, the trial would have proceeded in the ordinary course to judgment. This would have taken quite some time. As the Magistrate explained to the mother, after having made the consent orders, “the outcome ultimately might be that this would have gone for at least six to eight months ...”.
An initial question that arises, although one that is not reflected in the grounds of appeal, is whether in the circumstances of this matter and, in particular, given the voluntary absence of the appellant from the trial, the Magistrate was entitled to deal only with the parties who remained present and enter consent orders. In my view, she was entitled to do so and, arguably, obliged to do so. For reasons already explained, it was important for the trial to commence on the date it was listed. It was necessary for the trial to be conducted with procedural fairness and, in particular, in a way that would enable the appellant to prepare and present his defence (such as by way of adjourning part heard before the appellant would have been required to cross-examine any witness, as in fact occurred). An adjournment of the trial prior to its commencement was not warranted. To the contrary, given the statutory obligation to commence the trial within the 10 week period, any adjournment was to be avoided subject to any overriding considerations of fairness.
In the circumstances where the appellant voluntarily left the proceedings as he did, he created an environment where he was no longer willing or able to participate and which was entirely of his own doing. The appellant assumed the risk that the trial would proceed to a conclusion either on the merits or, as it happened, by consensual resolution. I am satisfied that the Magistrate did not err in continuing with the hearing once, and notwithstanding that, the appellant had left.
Furthermore, any setting aside of the orders made would have an effect on the position not just of the Minister but also of the mother and the children. The mother and the children consented to the orders and resisted the appeal; they are satisfied as to where lies the best interests of the children. This is an important consideration that points against interfering and ordering a new trial even if the Magistrate had erred. This is all the more so given that the appellant has an almost equally efficacious[12] remedy by bringing fresh proceedings under section 40 of the Act (see further below).
[12] I say almost equally efficacious because by initiating proceedings, the appellant would shoulder procedural requirements and perhaps an onus of proof that might not apply where he were simply to defend proceedings. However, in the circumstances of this case and given the nature of the jurisdiction being exercised (see, for example, section 45(1) of the Act), this is unlikely, in practical terms, to disadvantage the appellant significantly. On any analysis, he would have to meet the Minister’s case.
Given my reasoning to this point, the appellant’s grounds of appeal can be disposed of relatively briefly.
Ground 1 – information not provided in a sufficiently timely manner
The appellant’s complaint is that he did not have sufficient time in advance of the hearing to consider the Minister’s documentary case. The Minister’s documentary evidence (exhibit M2) was filed and served on Thursday 19 January 2017 with the trial due to commence on Tuesday 24 January 2017 and in accordance with rule 9(4)(c) of the Youth Court (Children’s Protection) Rules 2012. Documents numbered 1 to 26 in Part A of exhibit M2 had been provided to the appellant within a week of their respective dates and had been in the appellant’s possession for some time.
Of course, the appellant was in a vulnerable position in that he had only relatively recently parted ways with his legal representation and, as a consequence, was confronted with the difficult and no doubt daunting task of preparing the defence himself. Nevertheless, he was assured by the Magistrate that he would be provided with sufficient time to do so. However, rather than being willing to participate in the trial following which he would have his rights of appeal either by a way of merits review or on the basis of any procedural unfairness in fact experienced, the appellant was angry and demanding from the outset and precipitously left the hearing. The fact that the appellant, as at the commencement of the trial, had not had sufficient time to prepare his case, was not in any sense causative of the outcome.
I agree with the first respondent’s submission that in considering the appellant’s application for an adjournment, the court was required to have regard to the children’s interests as paramount. For reasons already explained, there was no good reason to further delay the commencement of the trial and in so doing to fail to expeditiously hear and resolve what was a very serious matter. There was no good reason to risk further prejudice to the children’s interests. This is particularly so given procedural fairness in favour of the appellant was always available in ways other than allowing an adjournment of the proceedings at their outset.
Ground 2 – unproven allegations as to the basis of the orders made by the Magistrate
The Magistrate made no findings on the merits, although I am satisfied that the Magistrate satisfied herself that the documentary evidence tendered by the Minister (exhibit M2) was sufficient to enable her to proceed to enter consent orders.
Grounds 3 and 4 – orders contrary to the Children’s Protection Act and violate the UN charter
I am satisfied that the orders were within the powers available pursuant to section 38 of the Act. The appellant, in his submissions, has not identified any legal or other basis upon which these grounds of appeal might be made out.
The status of the video and audio recordings sought to be relied on by the appellant
Before withdrawing from the proceedings in the court below, the appellant told the court that he had 11 audio-visual recordings of access visits that he wished to rely on as part of his defence. Material left by the appellant at the Magistrates Court including a number of disks was collected and put before the Magistrate sitting in the Youth Court and marked MFI F1. The audio-visual recordings were not admitted into evidence. For me to have regard to this material on appeal, I would need to be satisfied that it should be admitted as fresh evidence on the appeal.[13]
[13] See for example, H, A v Minister for Families and Communities [2005] SASC 339 at [31]-[32] (White J); L, G & Anor v Minister for Families and Communities & Ors (2012) 113 SASR 152 at [21].
I have not reviewed this material. I am not in a position to comment on whether or not it could have been admitted had the trial proceeded on the merits. Nevertheless, and in any event, there are two reasons why I do not propose to accept it as fresh evidence on the appeal. The first is that, as already discussed, the decision appealed from was one made by consent of the parties then present, not one made following a full examination of the merits. It would be inappropriate to receive some evidence purportedly relevant to the merits without the whole matter being retried in full. Second, the material was always available to the appellant and, had he remained as a participant in the hearing below, he would have been entitled to press for its tender at the trial. This is not a situation where the evidence in question could not have been obtained with reasonable diligence for use at the trial.[14] In any event, the first reason just given is sufficient for me to decline to receive the evidence on appeal.
[14] See, for example, Minister for Community Welfare v Hillier (1987) 47 SASR 553 at 570, Ventura v Sustek (1976) 14 SASR 395 at 399.
The refraining order
The appellant complains about order 5 as set out earlier which was in these terms.
A refraining order in respect to the father. The terms of that order are that [JH] is to refrain from having any contact at all with the children [LH] and [EH].
The order was made in accordance with the power conferred on the Youth Court by section 38(1)(e)(iv) of the Act as set out earlier in these reasons.
A request for this order was not included in the Minister’s application filed on 26 October 2016 and was not before the court either in writing or orally at the time the trial commenced on 24 January 2017. Accordingly, the appellant did not have notice that such an order was to be sought. The order was only sought orally during the trial and made with the consent of the remaining parties. In these circumstances, the appellant was not, at any material time, on notice that such an order would be sought.
It follows that, whilst at the time the appellant left the court so as to take no further part in the trial he was aware or should have been aware that the orders sought in the application might be made in his absence, he was not on notice that a refraining order might be made. To this extent there has been a lack of procedural fairness.
I have given anxious consideration to whether or not the refraining order should be set aside on this basis. In my view, it would be inappropriate to do so. The Minister’s case before the Magistrate, considered on a prima facie basis, was quite overwhelming. Further, having considered the material tendered by the Minister in exhibit M2, the transcript of the exchanges between the appellant and the Magistrate, the written submissions in their various forms provided by the appellant on appeal, as to their content and as to their tone insofar as the latter can be discerned from the written word[15] and the appellant’s presentation before me during the appeal, I am satisfied that the case for a refraining order was overwhelming. I am also satisfied that had the order been included in the application it would have made absolutely no difference to the appellant’s attitude and approach to the trial. In other words, I am not satisfied that, to the extent that there may have been an element of procedural unfairness in this respect, such has resulted in any miscarriage of justice.
[15] I agree with the first respondent’s submission that the appellant’s summary of argument is “incongruent, illogical, largely contains irrelevant material and is threatening and inappropriate”.
Conclusion
I am satisfied that there has been no error on the part of the Magistrate such as could be said to have given rise to a miscarriage of justice in this matter. I dismiss the appeal.
In doing so, I am fortified by the fact that pursuant to section 40 of the Act, an order made by the Court under Part 5, Division 2 of the Act (which includes section 38) may be varied or revoked at any time on application by a party to the proceedings. Because of the manner by which this matter proceeded in the Youth Court, there has been no complete exploration on the merits. There has not been a trial during which the appellant has presented his case. The Youth Court is a specialist court and the most appropriate forum for such a trial to be conducted. It is undesirable that any such trial should take place in this Court through the appellant process. It is always open to the appellant to bring an application in the Youth Court pursuant to section 40 seeking revocation or variation of any of the orders that have been made and, through such a process, to have the opportunity to present his case.
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