JDP v The Chief Executive of the Department for Child Protection
[2020] SASC 217
•27 October 2020
Supreme Court of South Australia
(Youth Court Appeal: Civil)
JDP v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2020] SASC 217
Judgment of The Honourable Justice Hughes (ex tempore)
27 October 2020
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - CLASSIFICATION: FINAL OR INTERLOCUTORY - GENERAL PRINCIPLES
The appellant sought to appeal a decision of a Magistrate of the Youth Court to summarily dismiss an application to revoke a care and protection order in relation to the appellant’s child.
The appellant submitted that she possessed medical evidence and recordings to contradict the evidence provided by the respondent in relation to the care and protection orders first granted in 2017. During the course of the hearing in the Supreme Court, the appellant raised an issue in relation to bias on the basis that the Judge was the Crown Solicitor when the original care and protection orders were sought by the Minister represented by the Crown Solicitor.
The respondent submitted that the Supreme Court did not have jurisdiction to hear the substantive issues of the appeal under the Youth Court Act 1993 (SA) and that the appeal should lie to the Youth Court.
Held, per Hughes J declining to recuse herself from hearing the matter and dismissing the appeal:
1. The Judge’s connection to the matters that are the subject of the appeal is not of such a nature as to create the possibility of an apprehension of bias on the part of a reasonable bystander that Her Honour might not bring an impartial mind to the disposition of the appeal;
2. The summary dismissal of an application to revoke a care and protection order is an interlocutory judgment; and
3. The Supreme Court does not have jurisdiction to consider the appeal as the summary dismissal judgment was made by a Magistrate of the Youth Court and therefore an appeal of such a decision lies to a Judge of the Youth Court.
Children and Young People (Safety) Act 2017 (SA) s 55; Youth Court Act 1993 (SA) s 22(2), referred to.
D-P v Minister for Child Protection [2018] SASC 149; Johnson v Johnson [2020] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Hall v The Nominal Defendant [1966] HCA 36, (1966) 11 CLR 423, applied.
H, JR v Department for Child Protection & Anor [2017] SASC 121, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"youth court appeal”; “recusal”; “interlocutory judgment”; “jurisdiction to hear appeal"
JDP v THE CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2020] SASC 217Youth Court Appeal: Civil
HUGHES J: This is an appeal against a summary dismissal of an application to revoke a care and protection order, by a Magistrate of the Youth Court.
On 27 October 2020, I dismissed the appellant’s appeal on the basis that the Court lacked the jurisdiction to hear it. These are my reasons for so doing. As the names of the appellant and the child are subject to a suppression order, I will refer to the appellant as JDP, the appellant’s husband as RH and the child as LH.
Recusal
At the commencement of the hearing, I raised with the parties the question of whether I should recuse myself from hearing the appeal, on either of two bases. The first is that at the time of earlier proceedings between the parties in 2017, I held the office of Crown Solicitor, first in an acting capacity and then as the appointee to that office. The Crown Solicitor was the solicitor of record in respect of the earlier proceedings. The 2017 proceedings were commenced in January 2017. The proceedings themselves were conducted, as was usual, by one or more of the solicitors employed within the Crown Solicitor’s Office. They resulted in an order in the Youth Court which was appealed by the appellant’s husband, RH, and heard in this Court by Nicholson J. I was appointed to this Court in June 2017. The appeal was finalised in August 2017.
I advised the parties that:
·I had no recollection of having been made aware of the matter or the appellant when the earlier proceedings were on foot;
·The office had, at that time, about 250 staff and was engaged in many dozens of proceedings; and
·Two ‘layers’ of management between myself and the solicitors with day-to-day carriage of matters, oversaw the files dealt with in the Child Protection area of the Crown Solicitor’s Office at that time.
I reminded the parties that the test that I was to apply to the question was whether a reasonable bystander, reasonably informed about these circumstances might consider that I might not be able to bring an impartial mind to these proceedings.[1]
[1] Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337.
The first respondent’s counsel, Ms Ewens, and counsel for the child, Ms Callaghan, each submitted that the test was not met in this case and that I was not bound to recuse myself. RH, who attended briefly at the beginning of the proceedings to assist JDP but excused himself part-way through, expressly raised the issue shortly after I entered the Court. JDP said that she would be ‘uncomfortable’ if I heard the matter but did not address the apprehended bias test. I consider that I should treat this as an application for my recusal.
The issue is one for my own determination. Having considered the circumstances and the submissions, I decline to recuse myself from determining this appeal. I have taken into account the length of time since I was Crown Solicitor, which is a little over three years. I have also taken into account the remoteness of my connection to the appellant’s earlier proceedings when I was Crown Solicitor. In particular, that I did not provide any advice, personally, to the client, or appear for the Minister, in respect of those earlier proceedings. I did not provide any assistance to the solicitor with the day-to-day responsibility for the matter. The connection I have with the current appeal is that in those earlier, related, proceedings between the parties, I was responsible to the Court for the conduct of those proceedings by the Minister, and I had the high level direction of employees. I do not consider that connection to be of such a nature as to create the possibility of an apprehension in an independent reasonably informed bystander that I may not bring an impartial mind to the disposition of the appeal brought by the appellant in these subsequent proceedings.
I also advised the parties that the appellant had, in her Notice of Appeal, made reference to Ms Micallef who was, during an earlier phase of these proceedings, her lawyer. The appellant criticises Ms Micallef in respect of the services she provided. Ms Micallef is a sessional Tribunal Member of the SACAT of which I am President. A sessional member is appointed by his Excellency the Governor to hear cases as assigned by the Registry officers under delegation and by Senior Tribunal Members who oversee lists of particular types of matters. I do not stand in any employment-type relationship with Ms Micallef and have no day-to-day dealings with her or the matters she hears unless I were to hear an internal review of a decision she had made that was challenged by a party.
I am satisfied that my association with Ms Micallef is not such of such a nature as to create the possibility of an apprehension in a reasonable bystander, armed with this information, that I might not bring an impartial mind to the disposition of this appeal.
Brief overview of facts
The appellant, JDP, is the mother of LH, who is five years old. JDP also has a four year old daughter and a daughter who is nearly two. RH, who also attended at Court with JDP, is the father of the three children.
The care and protection orders
On 24 January 2017, the Youth Court made a care and protection order in relation to LH that placed him under the guardianship of the then Minister for Education and Child Development (now the Minister for Child Protection) until he attains the age of 18 years (‘the original orders’). The original orders also outlined:
·how access is to occur between the appellant and LH (order 2),
·that the older daughter is to be under the supervision of the Chief Executive for 12 months while the appellant resides with the older daughter (orders 3-4),
·that RH is to refrain from contacting LH and the older daughter (order 5), and
·that the appellant is not permitted to record or broadcast any access visits or dealings with the Department for Child Protection (‘DCP’) without DCP’s consent (order 6).
Both daughters have been residing with the appellant and their maternal grandmother since 30 April 2016.
RH brought an appeal against the original orders to the Supreme Court and on 18 August 2017, Nicholson J dismissed the appeal.[2]
[2] H, JR v Department for Child Protection & Anor [2017] SASC 121.
The first application to revoke the care and protection orders in 2018
The appellant filed an application to revoke the original orders in the Youth Court on 5 February 2018. The respondent applied for the appellant’s application to be summarily dismissed. On 12 June 2018, a Judge of the Youth Court granted the respondent’s application on the basis that the appellant had failed to demonstrate that there had been any material change in circumstances since the making of the original orders (‘the earlier summary dismissal decision’). The appellant then appealed the earlier summary dismissal decision to the Supreme Court and on 27 September 2018, Parker J dismissed the appeal.[3]
[3] D-P v Minister for Child Protection [2018] SASC 149, (2018) 132 SASR 102.
Of significance to the current appeal is the fact that the appeal lay to this Court by virtue of the fact that the decision in the Youth Court to dismiss the application was made by a Judge of that Court.
The second application to revoke the care and protection orders in 2020
The appellant filed a subsequent application to revoke the original orders in the Youth Court on 8 July 2020. On 27 July 2020, the Chief Executive filed an application seeking a summary dismissal of this application. On 29 July 2020, a Magistrate of the Youth Court granted the summary dismissal application. It is this decision that JDP now seeks to appeal.
Grounds of appeal
The appellant’s grounds can be summarised as follows:
·the appellant contests medical evidence presented by the Department in the original proceedings, based on information that she has received from her specialist doctors, neurologist and psychologist;
·that officers of the Department have slandered the appellant which she can establish on the basis of audio and video recordings that she has of her interactions with the Department’s staff that do not correspond with the notes made by the Department’s staff;
·that the appellant was threatened and intimidated into signing the documents which provided the basis for the consent guardianship order being presented to the Court;
·that the appellant’s lawyer misinformed her about the significant change of circumstances required to revoke the original orders;
·that Departmental officers have inaccurately depicted RH as there are no issues with his parenting ability but only with his refusal to cooperate with the Department; and
·that testimony from RH’s psychologist and psychiatrist indicate that he possesses no mental illness contrary to the assertions of the Department.
Does the Supreme Court have jurisdiction to hear the issue pursuant to section 22(2) of the Youth Court Act 1993 (SA)?
When the appellant filed the application for revocation, the Chief Executive foreshadowed that she would object to the appeal being heard on the basis that this Court lacks jurisdiction to do so. The Chief Executive submits that JDP’s right of appeal lies to a Judge of the Youth Court rather than to this Court.
The right of appeal of a decision in the Youth Court is outlined in s 22 of the Youth Court Act 1993 (SA) (‘the Act’). Section 22(2) of the Act states:
(2) The appeal lies—
(a) if the judgment is given by the Judge of the Court—
(i) in the case of an interlocutory judgment—to the Supreme Court constituted of a single Judge; or
(ii) in any other case—to the Full Court of the Supreme Court; or
(b) if the judgment is given by a magistrate or judicial registrar—
(i) in the case of an interlocutory judgment—to the Judge of the Court; or
(ii) in the case of an action relating to a major indictable offence—to the Full Court of the Supreme Court; or
(iii) in any other case—to the Supreme Court constituted of a single Judge; or
(c) if the judgment (including an interlocutory judgment) is given by a special justice—to the Judge of the Court.
The summary dismissal decision that the appellant seeks to challenge was made by a Magistrate of the Youth Court. It did not relate to a major indictable offence. If the orders were interlocutory, the appeal was required to be made to a Judge of the Youth Court. If the orders were not interlocutory, the appeal was properly brought (subject to any other defect) to this Court.
There is nothing determinative within the legislation or rules as to whether a decision to summarily dismiss an application to revoke a care and protection order is interlocutory. The question was considered by this Court in the matter of D-P v Minister for Child Protection.[4] That case dealt with the first application for revocation that was made in respect of the original care and protection orders. On appeal from the summary dismissal of that application, Parker J considered whether the dismissal judgment was interlocutory or final so as to determine whether the appeal lay to a single Judge of this Court or to the Full Court, pursuant to s 22(2)(a).
[4] [2018] SASC 149, (2018) 132 SASR 102.
His Honour found that the earlier summary dismissal decision was interlocutory in nature on the basis that a summary dismissal does not finally determine the rights of the appellant. This is because, by virtue of a right conferred on her under what is now s 55 of the Children and Young People (Safety) Act 2017 (SA), the appellant is entitled to make a further application for revocation of the care and protection orders at any time during the life of those orders.[5] Parker J’s analysis of the relevant authorities are as follows:[6]
[5] Ibid at [26]-[27] (Parker J).
[6] Ibid at [22]-[27] (Parker J).
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:
[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)
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. 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.
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. That decision has been applied on a number of occasions.
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.”
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.
(footnotes omitted)
Parker J’s approach is supported in Hall v The Nominal Defendant[7] in which the High Court considered whether an order for summary dismissal, made by a court exercising inherent jurisdiction, is an interlocutory order. In that case, Taylor J stated:[8]
However, at an earlier stage Lord Alverstone C.J., when called upon to say whether a particular order was interlocutory or final said: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated. as a final order; but if it does not, it is then, in my opinion, an interlocutory order": Bozson v. Altrincham Urban District Council. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v. Marquis of Hartington. The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v. Insole and of an order dismissing an action as frivolous and vexatious in In re Page.
(footnotes omitted and my emphasis)
[7] [1966] HCA 36; (1966) 11 CLR 423.
[8] Ibid at 439-440.
The rights of the parties, for these purposes, are properly understood to be those described by the original orders by which guardianship of LH was conferred on the Chief Executive. Following those orders, JDP gained the right to apply during the life of the orders for their revocation. A refusal to grant such an order, including on a summary dismissal application, has the character of an interlocutory judgment.
The appeal against those orders therefore falls within s 22(2)(b)(i) of the Youth Court Act 1993 (SA) and, having been made by a Magistrate, must be made to the Youth Court to be determined by a Judge of that Court.
The appeal is dismissed.
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