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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASC 33
Decision Date: 5 March 2020

CaseChat Overview and Summary

The matter of JH v Minister for Child Protection involves JH appealing a Youth Court order which dismissed his application for the revocation of certain orders concerning his children, L and E. JH also sought a revocation of an order that he refrain from having contact with his child S. The appeal was brought before a single judge of the Supreme Court of South Australia, as the order dismissed by the Youth Court was interlocutory. The central legal issue was whether the appeal, lodged six days beyond the statutory deadline, should be granted an extension of time. Additionally, if the appeal was lodged out of time, whether the failure to set it down for hearing within six months should also result in an extension of time.

The court considered several factors in determining whether to extend the time for JH's appeal. The first factor was whether JH had an arguable case. The court found that JH's case was not arguable as it lacked merit. The court also held that the merits of the appeal were irrelevant when considering the extension of time for setting the appeal down for hearing, unless the appeal was so devoid of merit that it would be futile to extend time. The second factor was the length of the delay, which the court noted was six days. The third factor was the reason for the delay, which the court did not find satisfactory. The fourth factor was the extent of any prejudice to the respondent if time were extended. The court found that granting an extension would not prejudice the Minister for Child Protection. However, despite these considerations, the court concluded that extending the time for JH's appeal was not justified as the appeal was devoid of merit and futile.

In conclusion, the court denied JH's application for an extension of time for both the lodgement of the appeal and the setting down of the appeal for hearing. The court held that JH's case was not arguable and the appeal was devoid of merit, making any extension of time futile. As a result, the court dismissed JH's appeal in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.