JH v Minister for Child Protection - [2020] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JH & ANOR v MINISTER FOR CHILD PROTECTION
[2020] SASC 33
Judgment of The Honourable Justice Parker
5 March 2020
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
This judgment concerns two applications for an extension of time to appeal against the dismissal of two applications by a Senior Judge of the Youth Court. The applicants also seek an extension of time to set those appeals down for hearing.
On 10 May 2019, the Judge dismissed an application by JH to revoke refraining orders made in respect of his children L and E. Her Honour also made a final order that JH refrain from having any contact with his child S pursuant to s 53(1)(k)(iii) of the Children and Young People (Safety) Act 2017 (SA). The notices of appeal filed on 6 June 2019 complain of the orders made with respect to the refraining orders and also orders that the applicants are not to record their interactions with staff of the Department for Child Protection.
The judgment of the Youth Court was delivered on 10 May 2019. In accordance with s 22 of the Youth Court Act 1993 (SA) and r 281 of the Supreme Court Civil Rules 2006 (SA) the appeals should have been lodged by 31 May 2019. They were not lodged until 6 June 2019, being six days after the expiry of the time limit.
Held, per Parker J, refusing the applications for an extension of time for the lodgement of the appeals and extension of time to set the appeals down for hearing:
1. The applicants do not have an arguable case in relation to either of the matters that are the subject of their appeals.
2. The appeals are so devoid of merit that it would be futile to extend time for lodgement of the appeals or to extend the time to set down the appeals for hearing.
Children and Young People (Safety) Act 2017 (SA); Children’s Protection Act 1993 (SA); Supreme Court Civil Rules 2006 (SA); Youth Court Act 1993 (SA), referred to.
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; Ulowski v Miller [1968] SASR 277, applied.
D-P v Minister for Child Protection (2018) 132 SASR 102; H, A v Minister for Families & Communities [2005] SASC 339; H, JR v Department for Child Protection [2017] SASC 121; Minister for Education and Child Development v JH, JH, and LD-P (Youth Court of South Australia, Senior Judge McEwen, 16 December 2015), discussed.
Groom v Police (SA) (No 3) (2013) 231 Crim R 1, considered.

JH & ANOR v MINISTER FOR CHILD PROTECTION
[2020] SASC 33

PARKER J: This judgment concerns two applications for an extension of time to appeal against the dismissal of two applications by the Senior Judge of the Youth Court. The applicants seek an extension of time for the lodgement of their appeals and also an extension of time to set those appeals down for hearing.
The appeals were originally filed by JH, the father of the children whom are the subject of the proceedings in the Youth Court, on 6 June 2019. At a directions hearing, I granted permission for JRH, the wife of JH and the mother of the children, to be joined as an applicant.
On 10 May 2019, the Judge dismissed an application by JH to revoke all orders made in respect of his children L and E. Her Honour also made a final order that JH refrain from having any contact with his child S pursuant to s 53(1)(k)(iii) of the Children and Young People (Safety) Act 2017 (SA) (the “CYPSA”).
The appeals
The notices of appeal filed by JH on 6 June 2019 complain of the orders made with respect to the refraining orders and also the orders that JH and JRH are not to record their interactions with staff of the Department for Child Protection (“DCP”). The orders sought in the appeal are as follows:
·Return children to parents.
·Prosecute the perpetrators of criminal activity.
·Allow audio video recordings to be used as evidence as (1) they were done in protection of rights, (2) it is in the public interest that they be released publicly.
The grounds of appeal are:
1No restriction in law of SA for recording in protection of ones’ interest.
2Common law to be able to question ones’ accusers. My witnesses were not permitted to be called to give testimony.
3No factual evidence has been presented.
On 13 December 2019, JH filed an interlocutory application in this Court. He requested that he be given more time to address the requirements in the proceedings “as there is a huge amount of documents involved and the appellant is self-represented and not learned at law”. The application was said to be issued pursuant to r 39(3) of the Supreme Court Civil Rules 2006 (SA).
The order dismissing the application by JH in which he sought the revocation of all orders made in respect of his children, L and E, was an interlocutory order.[1] Thus, in accordance with s 22(2)(a)(i) of the Youth Court Act 1993 (SA), the appeal lies to a single judge of the Supreme Court. A question arises as to whether the order that JH refrain from having any contact with his child, S, is properly characterised as a final order. If it is a final order, the appeal lies to the Full Court under s 22(2)(a)(ii) of the Youth Court Act. Counsel for the Minister submitted that an ongoing refraining order should be regarded as a final order as it is effectively a statutory form of permanent injunction. On the other hand, I note that intervention orders issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and antecedent legislation are regarded as interlocutory orders.[2] It is unnecessary to decide whether the refraining order was interlocutory or final and I refrain from doing so as I have not heard fully developed submissions. The present matter can be decided solely on the basis of whether time should be extended regardless of whether the appeal lies to a single judge or the Full Court.
[1] D-P v Minister for Child Protection (2018) 132 SASR 102 at [18] to [27].
[2] Groom v Police (SA) (No 3) (2013) 231 A Crim R 1 at [29]-[31] (Sulan J).
Background
The Youth Court proceedings involving the children of JH and JRH have a long history, which I will summarise.
On 13 November 2017, JH filed an application in the Youth Court of all orders made with respect to L and E. He sought that these children be immediately returned to the care of their mother, JRH. The application was made under s 40 of the Children’s Protection Act 1993 (the “CPA”). JH and JRH have a third child, S. She remains in the care of JRH and Mrs RP, the mother of JRH and the grandmother of S, pursuant to orders made by the Youth Court. JH has an older daughter, B, who was born in 1995. She was removed from the care of JH and his deceased first wife, AH, in 2004 and subsequently placed under the long-term guardianship of the Minister.
On 26 May 2015, the Minister filed an application seeking a 12-month guardianship order with respect to L. During the course of the trial, the Minister was granted leave to amend the application so as to seek a guardianship order until L reached the age of 18 years. However, in the judgment delivered on 16 December 2015, Senior Judge McEwen refused the Minister’s application and ordered that L be placed in the guardianship of the Minister for 12 months.
On 26 October 2016, the Minister applied for orders that both L and E be placed under the guardianship of the Minister until they reached the age of 18 years. The matter was listed for trial on 24 January 2017. JH was to appear by audio visual link from the Adelaide Magistrates Court because of his previous behaviour during hearings. He withdrew from the hearing soon after it commenced and left some 20 discs that he sought to tender. After counsel for the Minister had opened and led evidence from a DCP social worker, the trial was adjourned to facilitate settlement discussions. Following those discussions, JRH consented to the making of final orders placing L under the guardianship of the Minister until he reached 18 years, and placing E under the supervision of the Chief Executive of DCP for a period of 12 months. JRH was required to enter into certain written undertakings for 12 months. The Court also ordered that JH refrain from having any contact with the children. JRH was legally represented at the hearing and, as I have said, consented to the making of these orders.
In August 2017, an appeal by JH against the orders made on 24 January 2017 was dismissed by Nicholson J.[3] His Honour found that the substantial body of documentary evidence, including the criminal record of JH and the substantial number of reports from social workers, psychologists and psychiatrists, provided substantial support for the factual basis of the application. By choosing to leave the hearing JH took the risk that the orders being sought by the Minister might be made in his absence. However, JH was not on notice of the possibility that a refraining order might be made. To that extent, JH had been denied procedural fairness. However, Nicholson J declined to set aside the refraining order on the basis that the Minister’s case was “quite overwhelming” on a prima facie basis. Material tendered by the Minister at trial, the transcript of the exchanges between JH and the Magistrate, the written submissions provided by JH on appeal as to both their content and tone, and the presentation of JH during the appeal led Nicholson J to conclude that the case for a refraining order was also overwhelming. His Honour was also satisfied that had JH been aware that the Minister was to seek a refraining order, it would have made absolutely no difference to the attitude of JH and his approach to the trial. In these circumstances, Nicholson J concluded that while there may have been an element of procedural unfairness, this had not resulted in any miscarriage of justice. Nicholson J also observed that it was open to JH to bring an application in the Youth Court under s 40 of the CPA seeking revocation or variation of the relevant orders.
[3] H, JR v Department for Child Protection [2017] SASC 121.
On 5 February 2018, JRH filed an application in which she sought the revocation of the long-term guardianship order made on 24 January 2017 with respect to L. That application was filed by JRH after a ruling by Senior Judge Eldridge that JH could not make an application seeking an order that the children be returned to the care of JRH. Any such application would need to be made by JRH.
After hearing argument from the parties on 12 June 2018, the Judge found in favour of the application by the Minister to dismiss the application made on 5 February 2018. The basis for the dismissal was that JRH had failed to demonstrate any material change in circumstances from those that had existed at the time the orders with respect to L were made on 24 January 2017.
On 13 November 2017, JH lodged an application seeking the revocation of all orders made with respect to the children L and E. Following an earlier oral application and legal argument, on 12 June 2018 Senior Judge Eldridge ruled that the 20 discs sought to be tendered by JH and JRH were inadmissible. Those discs recorded the interaction of JH and JRH with DCP staff and also their access visits with L.
The Judge also adopted the findings made by White J in H, A v Minister for Families and Communities[4] and by Senior Judge McEwen in Minister for Education and Child Development v JH, JH and LD-P.[5]The Judge also noted that although JH could not pursue an application seeking that L be returned to the care of JRH, it was open to JH to pursue an application to revoke the refraining orders.
[4] [2005] SASC 339.
[5] (Youth Court of South Australia, Senior Judge McEwen, 16 December 2015).
The ruling delivered by the Judge on 12 June 2018 was appealed to this Court. On 27 September 2018, in D-P v Minister of Child Protection, I dismissed the appeal.[6] I also made detailed, albeit obiter, observations about the refusal of the Judge to receive as evidence material recorded by JH and her Honour’s reception into evidence of evidentiary findings made in earlier proceedings.
[6] (2018) 132 SASR 102.
The Judge’s reasons
The child S was removed from the care of JH and JRH following her birth on 3 November 2018, pursuant to s 41 of the CYPSA. On 23 January 2019, the Youth Court placed S under the supervision of the Chief Executive of DCP for a period of six months commencing on 3 November 2018. The Court also ordered that JRH enter written undertakings for the same period. An interim order was also made requiring JH to refrain from any contact with S.
The Judge ordered that the application relating to S be heard together with JH’s application to revoke the refraining orders relating to L and E. Her Honour ordered that evidence given in respect of one application would also be treated as evidence relating to the other. Her Honour also adopted her earlier evidentiary ruling made on 12 June 2018.
Shortly after the tender of the trial books, JH issued more than 30 subpoenas. The Judge allowed the subpoenas addressed to a Mr John Kaye and Dr Gianna Koureos but set aside the remaining subpoenas. Her Honour noted that JH appeared to have issued subpoenas to every person who had authored a report contained in the trial books.
At trial, the Minister and Chief Executive were represented by counsel and the children had separate legal representation. JH and JRH were not legally represented.
The Court heard evidence from three witnesses called by the Minister and Chief Executive. Two of the witnesses, Ms Fiona Siefert and Ms Natalie O’Rourke were DCP social workers who had been, at various times, the allocated case workers for the children of JH and JRH. A third witness, Ms Anne Nicolaou, was a social worker with a private consultancy, Connecting Families. That firm had been engaged by DCP to undertake a reunification assessment involving JH, JRH and their children L and E.
JH and JRH gave evidence and called three witnesses. They were a clinical psychologist, Mr John Kaye, a psychiatrist, Dr Angelos Giannakoureos, and Pastor Michael Pietsch of the Lutheran Church.
The evidence of Ms Siefert was that she had been involved as a case worker with JH and JRH during 2016 and 2017 for a period of about 12 months. She had found it very difficult to interact with JH due to his anger and hostility. Towards the end of her involvement, the hostility of JH had increased to such an extent that it was not possible to have face-to-face interaction with him as he would become verbally abusive. Ms Siefert referred to an occasion when JH had access to L during 2016. She said that the behaviour of JH deteriorated after he was given advice. This resulted in L becoming distressed and fearful and made it necessary to terminate access. Ms Siefert considered that the refraining orders should remain in place as she had not seen any change in the behaviour of JH during the time she was involved. In her opinion, JH would need to demonstrate significant change that indicated that he had an ability to have a relationship with his children. During the period that Ms Siefert was involved the access visits had been difficult and traumatic for L.
Ms O’Rourke was an infant worker with DCP. She had reviewed the family circumstances prior to the birth of S and was the allocated social worker for some weeks after her birth. She had conducted two home visits where she observed JRH and her mother interact with S and E. She considered that JRH was receptive to feedback and quite appropriate in her interactions with S. JRH was the primary carer for S and E but received support and oversight from her mother, RP. Ms O’Rourke had witnessed a telephone conversation between JH and JRH during which JH became very agitated. JH was not aware that Ms O’Rourke could hear the conversation.
While Ms O’Rourke had no direct interaction with JH, in her opinion the refraining orders should remain in place to protect all three children. She considered that if the orders were not in place, the children would be at considerable risk of harm as JH had a longstanding history of volatile, impulsive behaviour and an inability to regulate his emotions in a safe way for children, and babies in particular. In the opinion of Ms O’Rourke, the behaviour of JH would have a worrying effect on the development of S. She also observed that there had been limited change in the behaviour of JH.
Ms Nicolaou stated that she had worked with a male colleague from Connecting Families while undertaking the reunification assessment. She also met with the allocated DCP case workers. Her colleague worked with JH while she focused her attention on JRH and her mother, RP. Ms Nicolaou stated that the review meeting conducted with JH had been a “very unproductive event” as it was not possible to have a civil conversation to discuss concerns. Ms Nicolaou stated that considerable concern remained at the completion of her assessment. She had recommended that long term orders be sought for the welfare of L, and also expressed concerns about the welfare of E due to the inability of JRH to understand the risks that were posed.
JH complained of the treatment he had received from DCP, SA Police and the mental health system. He alleged that his first wife had been “killed by the department” and his child of that relationship, B, had been taken away because of lies by DCP. He asserted that he had been wrongly diagnosed with bipolar disorder and DCP had breached the United Nations charter. He asserted that he posed no risks to his children. While he conceded under cross-examination that he became angry in his dealings with DCP, SA Police and the mental health system, he contended that his anger was not a problem in front of the children. He acknowledged that he would never work cooperatively with DCP. In response to a question as to what action he would take if the refraining order was to be lifted, he stated:
I’d take my kids to Sweden and tell yous cunts to fuck off.
JH stated that if the refraining order was lifted he would participate in raising his children. He admitted in cross-examination that he was unable to control his temper and refrain from shouting in the presence of the children.
The evidence of JRH was that JH had never been violent in front of her, “spoiled her rotten” and treated her “like a princess”. While she conceded that he became “excited”, she said that he had never posed a risk to the children.
The psychologist, John Kaye, stated that he had seen JH on 12 occasions since 2016. He had also seen JRH separately in late 2015, and during 2018 she had attended sessions with JH. JH had been referred to Mr Kaye by his general practitioner to assess whether he suffered from bipolar disorder and to focus on anger management treatment. A clinical assessment showed that there was no clinical diagnosable depression but JH had a clinically severe level of stress. During the sessions with Mr Kaye, JH had become emotional and highly aroused, and that had led him into “increasingly ranting, uncontrolled interaction”. Mr Kaye stated that at times of stress the executive control of JH showed limitations and he appeared uncontrolled and was often perceived as dangerous. (Mr Kaye indicated that there was an interactional vicious cycle, in that JH expected he was going to be misjudged, he reacts angrily, the anger translates into actions which he sees as unfair, and goes around in a vicious circle.) Mr Kaye also stated that there had been minimal improvement in the limitations on the executive control of JH from 2016 to 2018. Mr Kaye acknowledged that if JH became explosive in the presence of his children it could be frightening.

Mr Kaye described the relationship of JH with JRH as being very caring. He did not see him as a danger to the children. Mr Kaye considered that the anger outbursts of JH were not aimed at his wife or children, but were reactive to the situations he had found himself in relating to the removal of the children and access issues. While the reactions of JH could be triggered by contact with DCP staff, the psychological health of his children would only be placed at risk if the child became aware of his level of tension, anger and conflict.
Dr Giannakoureos stated that he had seen JH intermittently between 2008 and 2016, with there being four or five contacts during 2016. While he had not seen any evidence of an Axis 1 mental illness, he had seen “a hurt man who’s very angry and occasionally expresses his anger in a childlike manner including trolling various politicians and drawing attention to himself”. While Dr Giannakoureos acknowledged that he had reported in 2009 that JH had a diagnosis of bipolar disorder manic phase, he stated that he would not have made the same diagnosis now. Dr Giannakoureos also stated that JH “stores anger, he stores resentment and it eventually builds up and it only takes a little trigger for him to explode”.
Dr Giannakoureos stated that he had diagnosed JH with complex post‑traumatic stress disorder from 2016 and also certain traits of personality disorder. Dr Giannakouros stated that he could not comment on the risk that JH posed to his children, although he had never seen any evidence to suggest that he did pose a risk. However, he qualified that opinion by stating “I can’t talk about what happens when I don’t see him”.
Pastor Pietsch gave character evidence in support of JH. He said that he had communicated with JH about half a dozen times in the previous 12 months and had never observed him to be verbally aggressive. However, he noted that he became heightened or animated when discussing issues relating to his children.
The Judge accepted that Ms Siefert, Ms O’Rouke and Ms Nicolaou were witness of truth, and that both Ms Siefert and Ms Nicolaou had a clear recollection of their interactions with JH. Those interactions followed a similar consistent pattern to those recounted in the reports contained in the trial books.
The Judge found that JH was not a credible or reliable witness. His presentation while he gave evidence was consistent with all other accounts of his behaviour. Her Honour described him as being loud, aggressive, abusive and taking no notice whatsoever of her constant directions to him to modify his behaviour and not use foul language in the Court. He was dismissive of all child protection concerns raised in relation to his four children, and demonstrated a total lack of insight into the risks that his behaviours posed to the children and the impact upon their safety and wellbeing.
The Judge accepted that JRH gave evidence to the best of her ability. However, her Honour found that she demonstrated a complete lack of insight into the child protection concerns. She was also dismissive of any concerns raised about the behaviour of JH and the risk that it posed to the safety and wellbeing of the children should he have contact with them.
The Judge accepted that both Mr Kaye and Dr Giannakoureos were witness of truth. However, her Honour found that their evidence was of little assistance as neither had observed JH in the presence of his children. Her Honour also noted that both of the expert witnesses agreed upon a diagnosis of complex post‑traumatic stress disorder for JH and agreed that he had traits of personality disorder. Her Honour found that that the evidence of Pastor Pietsch was of limited assistance as he had not observed JH in the presence of any of his children.
As I have previously noted, the Judge adopted the findings made by White J and Senior Judge McEwen in earlier proceedings. I also note that in an obiter finding in D-P v Minister for Child Protection I held that s 45 of the CPA empowered the Judge to receive into evidence the findings made in earlier relevant proceedings and her Honour’s exercise of her judicial decision was not vitiated by any process error or outcome error.[7]
[7] (2018) 132 SASR 102 at [106]
Senior Judge McEwen had stated in Minister for Education and Child Development v JH, JH and LD-P that:
[6]The essential dilemma arising on the evidence, can be succinctly summarised. It involves a degree of circularity.
[7]Firstly, the mother has cognitive deficits, combined with a fairly simplistic and childlike presentation and demeanour. This poses obstacles and difficulties to her being able to parent L; but these are not necessarily insurmountable, if she has assistance and support. The Department has always expressed a willingness to work with Mrs H to attempt to reunify her with L, who was removed at birth.
[8]Secondly, the evidence establishes that Mr H’s issues are long standing, entrenched, and complex. In relation to Mr H, the prospects of him achieving the necessary insights into his behaviour and addressing these, in order to be able to properly parent L, either alone, or with Mrs H, appear to be very slight.
[9]In short, on the Minister’s case, Mrs H’s parenting deficiencies may be salvageable; Mr H’s are very unlikely to be addressed, to a degree, or within the requisite time line, for him to parent, or co-parent L.
[10]The circulatory (sic) of the issues results from the relationship between Mr and Mrs H. Normally, of course, a strong enduring relationship between parents is a positive attribute. Normally, the presence of a supportive husband, would assist someone like Mrs H to understand and overcome, her parenting difficulties. However, in the context of these proceedings, and L’s best interests, it makes it difficult to isolate and address Mr H’s parenting deficits. To put it bluntly, when the joint parenting ability of the parents, is assessed as a package; the issues, behaviour, and role of Mr H renders it unworkable. Additionally, Mrs H tends to be overborne, manipulated, or distracted by Mr H’s behaviour, and accordingly unable to focus, to the requisite degree, upon L’s interests. At the same time, Mr H’s entrenched issues and behaviour mean that he is also unable to focus on L’s best interests; or to focus on enabling and assisting Mrs H to address her parenting deficiencies.
Senior Judge McEwen then concluded:
[23]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 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 critical 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 complicated 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 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.
The Judge found that no evidence had been put before her that would cause her to question the correctness or ongoing relevance of the findings made by White J and Judge McEwen. Her Honour also referred to a passage from a report prepared by Ms Nicolaou dated 30 August 2016, which was in the following terms:
[67]…
Mr H displays a severe inability to regulate his emotions, with his common presentation being extreme agitation, anger, paranoia, aggression and verbal violence. This behaviour is enduring; he has no insight into why it is a problem, and has no motivation to receive treatment. His life is generally chaotic and he self-medicates with a range of substances. He is frightening to those he makes threats to, and would be a terrifying figure for a young child (P.497).
…
Mr H has developed an extremely negative view of the world and people within it, seeing them as evil and corrupt. His perceptions are highly distorted and disorganised. He totally rejects the perceptions of others, except for those close to him, whom he idealises. The effect of such mistrust is to externalise the bad as attributable to others and to idealise those closest. Responsibility is never taken, problems are caused elsewhere and someone is always to blame. No stable or functional relationships are formed or sustained. Some people can learn to reflect on this tendency and to perceive the world and others in less distorted ways. With regard to Mr H and Ms D-P, their perceptions and behaviour remain fixed. Neither parent was able to see any limitations in their own individual functioning or their parenting capacity, or to recognise in any way how the children’s needs are compromised. They both maintained a view of being persecuted for not good reason (p. 498).
…
There is extensive documentation of Mr H’s self-absorption and his demands for his children to be treated in a certain way that meets his preferences and needs. This would be extremely damaging for them. His demands reflect his inability to see them as separate beings. The two occasions of Connecting Families contact with Mr H were entirely consistent with previous observations of other assessors. Signs of Safety mapping is a useful way of providing balance in the child protection assessment process, giving an opportunity to identify parental strengths and evidence of protectiveness. In Mr H’s case no strengths or examples of protectiveness could be found….. The children would be gravely at risk if they were in their mother’s care and she remained in a relationship with Mr H (p. 499).
Her Honour also stated that she agreed with the following conclusion reached by Ms Nicolaou in her report:
[69]…
The capacity to remain calm and focused under stress is a core life skill, without which a person will struggle to cope with everyday challenges and will likely make poor decisions. Emotional dysregulation is a hallmark of earlier unresolved trauma. When it is severe and/or enduring it is a feature of diagnosable mental illness. Emotional regulation is a core requirement of parenting, as a calm and reflective parent acts as a mirror for the child’s developing sense of self. A child in the care of a parent who is frequently emotionally dysregulated is frightened by this behaviour and their needs come second to the parents’.
The Judge referred to the fact that Ms Siefert had stated that she had not seen any change in the behaviour of JH during the period that she was involved with him. He continued to demonstrate a complete inability or unwillingness to regulate his emotions. Her Honour found that for a child to witness this behaviour would be a most traumatic experience and place them at significant risk of suffering harm. In that respect, her Honour referred with approval to a report of Ms Sarah McMahon, a psychologist, dated 20 May 2015 where she had stated:
[72]…
Mr H’s descriptions of his own mental health detailing manic and depressive behaviours as well issues of complicated grief suggested that, at the time of the current assessment, Mr H’s mental health would significantly impact his daily functioning and parenting capacity. The literature notes that a child’s emotional development may be significantly harmed by the impact of their parent’s mental health issues. A parent’s extorted expressions of reality and strange beliefs can be frightening and confusing to a child. Unpredictable fluctuations in mood an chaotic planning can lead to increased risk of neglect as well as the child experiencing anxiety and inhibition.
……Overall, Mr H continues to demonstrate a highly impulsive and explosive pattern of behaviour that again indicates underlying mental health instability and would be a contra‑indicator of safe parenting practices. His limited insight as to the effect his behaviour had on others, or empathy for their experience undermines his capacity to change this behaviour, and thus any child in his care would be considered at risk.
The Judge concluded that JH remained completely dismissive of the child protection concerns and showed a total lack of insight into the risk his behaviour posed to his children. He had shown an unwillingness and an inability to change his behaviour. Instead, he asserted that the allegations relied upon by DCP were lies. He agreed in his evidence that he would not ever work cooperatively with DCP.
The Judge noted that s 7 of the CPYSA provides that the paramount consideration in the operation and enforcement of the Act was to keep children and young people safe from harm. Her Honour stated:
[78]Having observed Mr H’s demeanour in the courtroom over several days, having heard the oral testimony of the witnesses and having carefully considered the significant body of documentary evidence contained in the trial books, this paramount consideration can only be achieved if the refraining orders remain in place.
[79]Mr H has failed to adduce any evidence whatsoever to support the revocation of the refraining orders.
For these reasons, her Honour dismissed the application by JH seeking the revocation of the refraining orders made in respect to the children, and also made a final order that JH refrain from having any contact with the child S.
Consideration
The judgment of the Youth Court was delivered on 10 May 2019. In accordance with s 22 of the Youth Court Act and r 281 of the Supreme Court Civil Rules 2006 (SA) the appeal should have been lodged within 21 calendar days. Thus, the appeal should have been lodged by 31 May 2019. In fact, it was not lodged until 6 June 2019, being six days after the expiry of the time limit.
Because the interlocutory applications lodged by JH sought “more time to address the requirements in the proceedings”, in conducting the hearing I focused the attention of the parties upon the failure to set down the appeals for hearing within six months in accordance with r 296(2).
It is arguable that, in a case where an appeal has been lodged out of time, the requirement that the appeal be set down for hearing within six months is not relevant. Whether there is an arguable case is one of the four main factors to be taken into account when the Court considers the exercise of its discretion to extend time. The other relevant considerations are the length of the delay, the reason for the delay and the extent of any prejudice that would be suffered by the respondent if an extension of time were to be granted.[8]
[8] Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 at [4] (Brennan CJ and McHugh J). See also Ulowski v Miller [1968] SASR 277 at 280 (Bray CJ).
In Jackamarra (an Infant) v Krakouer Brennan CJ and McHugh J held that a more liberal approach is justified in a case where the extension of time relates to the doing of an act (e.g. setting an appeal down for hearing) following the lodgement of the appeal within time. A stricter approach is necessary where the extension of time relates to the actual lodgement of the appeal.[9] Their Honours also held that the merits of an appeal are not a relevant consideration when the extension relates to the taking of a step in prosecuting an appeal already lodged, unless the Court is satisfied that the appeal is so devoid of merit that it would be futile to extend time.[10]
[9] Ibid at [4].
[10] Ibid at [7].
It would ordinarily not be difficult to persuade me that an unrepresented party who has lodged an appeal six days out of time should be granted an extension provided that they have an arguable case. However, I do not consider that JH and JRH have an arguable case in relation to either of the matters that are the subject of their appeals. Thus, there is no basis to extend time for lodgement of the appeals. Furthermore, I consider the appeals are so devoid of merit that it would be futile to extend time to set down the appeals for hearing. Thus, regardless of whether the issue is the failure to lodge the appeals within 21 days or the failure to set them down within six months, the grant of an extension of time cannot be justified. My reasons for that conclusion follow.
JH made oral submissions relying upon the Sixth Amendment to the Constitution of the United States. As I pointed out to JH during the hearing, the operation of the US Constitution is completely irrelevant in an Australian court. The Sixth Amendment confers a range of procedural rights upon defendants in criminal proceedings in the USA. In general terms, those procedural rights are consistent with and similar to those conferred by the common law. While the Sixth Amendment has no relevance in South Australian courts, I proceed on the basis that the appellants contend that they have been denied procedural fairness in the Youth Court. I also interpret the reference in the notice of appeal to the common law to be intended to make the same point.
JH also contended that he has been denied rights conferred by the United Nations. I understand that he may possibly have intended to refer to the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child. I make three observations about those contentions. First, those instruments only have legal force to the extent they have been enacted into domestic law. Secondly, JH has simply made a broad rhetorical assertion without in any way identifying how any rights that form part of domestic law have been breached by the decisions and orders of the Youth Court. Thirdly, I do not consider that such an argument could possibly succeed on appeal.
The first ground of appeal identified in the notices of appeal is “no restriction in law of SA for recording in protection of ones’ interest”. This ground of appeal clearly refers to the refusal of the Judge to permit JH to rely on a very large volume of audio and video recordings covering his contact with DCP and access to his children.
In D-P v Minister for Child Protection I considered in detail the correctness of a ruling made by the Judge at an earlier stage in the proceedings relating to the children of JH and JRH.[11] Although I held that the appeal against the evidentiary rulings made by the Judge was incompetent, I nevertheless considered the correctness of those rulings as I regarded it as a question of significant importance upon which it was appropriate to provide guidance to the Youth Court. My reasons appear at [49] to [94] in D-P v Minister for Child Protection. I will not repeat in full what I said on that occasion.
[11] (2018) 132 SASR 102. That case was reported as “D-P” because JRH had instituted the appeal under that name. However, I note that she now prefers to be referred to as JRH.
In the 2018 appeal, I accepted the contention that the recordings had been made contrary to the prohibition in s 4 of the Listening and Surveillance Devices Act 1972 (SA). I also found that the exception that appears in s 7 to the prohibition in s 4 did not apply as the recordings had not been made for the protection of the lawful interests of JH and JRH. In reaching that conclusion I followed the interpretation of “lawful interests” adopted by Doyle CJ in Thomas v Nash,[12] Branson J in Violi v Berrivale Orchards Ltd[13] and Doyle J in Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd.[14]
[12] (2010) 107 SASR 309.
[13] (2000) 99 FCR 580.
[14] [2018] SASC 116.

I also found that the prohibition on the use of material recorded contrary to the terms of the Listening and Surveillance Devices Act no longer applied following its repeal. However, I also found that the Judge had correctly applied the discretion in Bunning v Cross to refuse to admit the recordings into evidence as they had been made unlawfully.[15]
[15] (1978) 141 CLR 54.
JH has not sought to identify any error in the ruling of the Judge that the recorded material was not admissible as evidence. He simply asserts that he is entitled to record his interactions with DCP staff without their permission as he is seeking to protect his own lawful interests. I consider that it would be futile to extend time so as to permit this point to be argued. His point is clearly contrary to the weight of judicial authority, albeit decisions by single judges.
I also noted at [92] of my earlier judgment that the recordings may have little, if any, evidentiary value.
A second contention apparently advanced by the applicants is that the decision by the Judge to set aside all but two of the more than 30 subpoenas that had been issued by JH resulted in a denial of procedural fairness. The only subpoenas allowed by the Judge were those addressed to Mr Kaye and Dr Giannakoureos.
The decision by the Judge to set aside most of the subpoenas issued by JH followed a submission by counsel for the Chief Executive that there was no legitimate forensic purpose in calling as witnesses a large number of current and former employees of DCP. Following the decision by the Judge to adopt the findings made by White J and Senior Judge McEwen, the only possible factual dispute might relate to events that had occurred during a period of three to four months following the release of JH from prison in mid-2016 when JH had access to L under the observation of DCP staff. JH had cross-examined Ms Seifert, the social worker allocated to the family at that time. He had also had the opportunity to cross-examine Ms O’Rourke and Ms Nicolaou. The cross‑examination conducted by JH mostly amounted to general assertions that Ms Seifert was lying. JH also disputed some peripheral matters of detail. Counsel submitted that the cross-examination of witnesses conducted by JH, and also the cross‑examination of him by counsel, established that JH did not dispute the observations made by the witnesses. Instead, what JH disputed was the opinions that the witnesses expressed based upon their observations. Counsel noted that the case for the Minister and Chief Executive did not rise higher than the opinions expressed by those witnesses.
The Judge set aside the subpoenas as she considered that the calling of the additional witnesses would not be of any assistance to the Court having regard to the issues that were in dispute.
As previously noted, the Court heard evidence from Ms Siefert, Ms O’Rourke and Ms Nicolaou. Each of those three witnesses is a qualified social worker. They were cross examined by JH. Ms Nicolaou is not employed by DCP but by a private consultancy firm. The evidence of those three witnesses about the behaviour of JH, and also their observations about JRH, were consistent. Their evidence about the behaviour of JH was consistent with the observations made by the Judge during the course of the trial and also with the evidence of Mr Kaye and Dr Giannakoureos. It was also consistent with the past judicial findings received into evidence.
The finding by the Judge that there had been no material change in circumstance from the time that orders were made on 24 January 2017, suggests that the reports prepared by DCP officers were consistent in the concerns they stated about the behaviour of JH and the issues relating to JRH. In that light, I consider that it would be futile to extend time to permit this issue to be pursued on appeal.
I also note that when JH was provided with a list of authorities that the Crown intended to rely upon in opposing his application for an extension of time he sent the following email message to my chambers on 31 January 2020:
all parties am i to respond to the bullshit arguments set out in these attachments previous findings in these cases are irrelevant to the case before the court the facts found in the south australian courts against me are bullshit there were no injuries sustained by any children in my care (there is only opinion of some ugly men hating lesbians that do not like me my attitude my beliefs or my personality) the appeal is to look at the manner in which this case was run the legal procedure is the question in this appeal THE IDIOT that sat in judgement did not allow my call for witnesses to ask valid questions of my accusers (considering the existence of 30 gb of video and audio recordings (produced in the protection of my rights and interests) that were deemed unacceptable as evidence that prove beyond any doubt my obnoxious allegation that the state has acted outside legal boundrys in the KIDNAPPING OF MY SON and covering up the lies from the [HH] vs the department relating to [B] my witnesses i was allowed testified to the bullshit that has been written (criminally defaming me) with misinformation that the courts have used to achieve an outcome (criminal defamation by legal definition ) a criminal act by the courts! yet alone the violation of the human rights charter that allows me to have a family and justice from a fair unbiased court and the fact yes fact when i became australian i was mislead into believing that human rights were applied to this countrys laws yet after having 26 out of thirty articles of the charter violated by a government representative YOU FUCKING MAKE ME SICK TO THE BONE WITH YOUR SOUTH AUSTRALIAN BULLSHIT IN YOUR COURT ROOMS but back to my question as i am unlearned at law am i supposed to respond to the bullshit contained in these attachments and the irrelevance of previous judgments in this case of one sided honesty and one sided bullshit from state government employees that the the idiot in the chair must give more credence to than the facts?
if this is the case please deport me to whence i came back to my home land of the old and the free and give my son back his mother and the mother back her son
as it is stated in the un charter
motherhood is sanctified and a right for all
JH[16]
[16] Initials have been substituted for the names used in this document.
The content and tone of that message was entirely consistent with evidence given at trial and the findings made by the Judge. It is also consistent with her Honour’s finding that there had been no material change in the behaviour of JH.
The third contention raised in the notice of appeal is that no factual evidence was presented to the Youth Court. In fact, a substantial volume of evidence was received by the Youth Court in a trial that extended over several days. However, I understand that the reference in the notice of appeal to a lack of evidence is intended to refer to the decision of the Judge to admit into evidence the findings previously made in the proceedings to which I have referred at [40] and also the setting aside of some 30 subpoenas.
I considered the admissibility of the evidence and findings in previous proceedings at [95] to [109] of my earlier judgment. I found that the evidence and findings was admissible pursuant to s 45(1)(a) of the CPA, which provides that the Youth Court is not bound by the rules of evidence but may inform itself as it thinks fit. I also found that the exercise of her Honour’s discretion to admit those findings was consistent with the finding by Hale J (as her Ladyship then was) in Re B,[17] the judgment of the Full Court of the Family Court in B & J[18] and of Tree J in Holgar & Stott.[19]JH has simply asserted that the earlier findings received into evidence were wrong and based on perjured evidence but has not advanced any factual basis for that assertion.
[17] [1997] 2 All ER 29.
[18] [2009] FamCAFC 103.
[19] [2017] FamCA 772.
For these several reasons, I am that satisfied that the appeals are so devoid of merit that it would be futile to extend time. I find that an extension of time should not be granted for the lodgement of the appeals nor for the setting down of the appeals.