JLS v Chief Executive of the Department for Child Protection (No 2)

[2021] SASCA 152

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION (No 2)

[2021] SASCA 152

Judgment of the Honourable President Livesey  (ex tempore)

16 December 2021

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - OBLIGATION TO DISQUALIFY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS

By urgent amended interlocutory application dated 16 December 2021, the applicant sought orders that a Judge of the Court of Appeal disqualify himself from hearing her application, that the child subject to these proceedings be restrained from leaving South Australia, that all orders made in the Youth Court be stayed until further order of the Court of Appeal, and that all proceedings presently on foot in the Youth Court be suspended until further order of the Court of Appeal. The applicant also objected to the child’s father being heard on the application.

The applicant contended that the Judge was “biased” and had a “vested interest” in the proceedings. The applicant contended the child’s father was “biased” and to date had not taken part in the Youth Court or Court of Appeal proceedings concerning the child. The applicant’s application appeared to be advanced on the basis that removal of her child from her care, control and custody was “unlawful”, and that the Chief Justice erred in “law” and “findings of facts” in summarily dismissing her habeas corpus application on 30 August 2021.

Held (per Livesey P), dismissing the application:

1.There is nothing in the material or arguments raised today which support the contention that there is any bias or vested interest.

2.      There is no good reason not to permit the child’s father to be heard on the application.

3.The applicant has not identified by evidence or argument any irreparable or other prejudice that will be sustained if a stay is refused.

4.      The application is dismissed.

Children and Young People (Safety) Act 2017 (SA) ss 66, 94, 158; Family Law Act 1975 (Cth) s 69ZK; Uniform Civil Rules 2020 (SA) rr 21.1, 22.1, referred to.
Bangarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585; CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740; JLS v Chief Executive of the Department for Child Protection & Ors [2021] SASCA 136; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Re Beth (2013) 42 VR 124; Re JRL; Ex parte CJL (1986) 161 CLR 342; Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; Women’s and Children’s Health Network Incorporated, The Department of Child Protection v SG (Supreme Court of South Australia, Kourakis CJ, 17 December 2019), considered.

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION (No 2)

[2021] SASCA 152

Court of Appeal – Civil: Livesey P

1. LIVESEY P: This is an urgent amended interlocutory application dated 16 December 2021 by which the applicant seeks, amongst other orders, the stay of an interim Guardianship Order concerning her son.

2. At the outset, I should address an objection made to me sitting today.  The applicant says that I have not afforded her “lawful due process” and that I am “biased and have a vested interest”.

3. The applicant refers to my decision, JLS v Chief Executive of the Department for Child Protection & Ors,[1] and I should deal with that decision first. It concerned the applicant’s earlier Notice of Appeal. I found that her Notice of Appeal was legally incompetent and should be struck out. However, I made no finding that could be characterised as involving prejudgment of the issues which are presently before the Court.  There is nothing in the material or arguments raised before me which would support the contention that I am either ostensibly biased or have, properly understood, any vested interest. In Re JRL; Ex parte CJL Mason J explained:[2]

   It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party… In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established"… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

   (footnotes and citations omitted)

   [1]     JLS v Chief Executie of the Department for Child Protection and Ors [2021] SASCA 136.

   [2]     Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).

4. In the circumstances, I reject the application that I disqualify myself from sitting today.

5. There is an issue as to whether the child's father should be heard.  The applicant opposes the involvement of the child's father. He appears today by telephone.  The applicant said that the child's father was likely to be biased and had, to date, not taken part in the proceedings concerning the child in the Youth Court or in this Court.

6. Whilst the self-interest of the father might be obvious, in my view, ordinarily a child's father should be heard, and I see no good reason not to permit the father to be heard today.[3]

   [3] See s 66 of the Children and Young People (Safety) Act 2017 (SA) and rr 21.1 and 22.1 of the Uniform Civil Rules 2020 (SA). See also, J v Lieschke (1986) 162 CLR 447, 456 (Brennan J); State of South Australia v Lampard-Trevorrow [2010] SASC 56, [227]-[228] (Doyle CJ, Duggan and White JJ).

7. Mr Hemsley (as amicus) and the father both put submissions to the Court.  The father explained that he is presently taking advice regarding an application to be made concerning his son in the Federal Circuit and Family Court of Australia (Division 2).  He explained that the recent visit with his son went well.

8. Mr Hemsley, effectively on behalf of the child, explained to me that the child, who is eight years of age, would prefer to stay in South Australia.  Whilst the child says he has spent some time with his father, including in connection with the recent trip to Queensland, which was enjoyable, he nonetheless wishes to stay in South Australia. Mr Hemsley submitted that the arrangements being made by the Department for Child Protection (the Department) concerning the placement or reunification of the child with his father raised matters of serious concern.  As he put it, “to send a child to a placement where he doesn’t know his father is potentially harmful… it needs to happen a little bit slower and a bit more cautiously”.

9. He acknowledged that questions such as these might ordinarily come before the Contact Arrangements Review Panel under s 94 of the Children and Young People (Safety) Act 2017 (SA) (the Act) or perhaps before the South Australian Civil and Administrative Tribunal (the Tribunal) under s 158 of the Act. Nonetheless, he emphasises that questions concerning placement or reunification should be addressed carefully and cautiously by the Department and by Ms Tschirn, the person with responsibility for this matter, in particular. He acknowledged that questions about reunification may be beyond the jurisdiction of the Tribunal but these issues, in general terms, come within the parens patriae jurisdiction of the Supreme Court.[4]

   [4]    Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; Re Beth (2013) 42 VR 124; Women’s and Children’s Health Network Incorporated, The Department of Child Protection v SG (Supreme Court of South Australia, Hinton J, 17 December 2019); CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740.

10. Whilst there is presently no application of that kind before the Court, I was informed by the applicant that she intends to make an application later today.

11. As concerning as the matters raised by Mr Hemsley are, they do not affect my consideration or determination of this application. 

12. The applicant seeks a stay until the further order of this Court, but I think it is intended to operate pending the hearing of her appeal against the decision of the Chief Justice given on 30 August 2021, dismissing her application for habeas corpus concerning her son. The Chief Justice dismissed that application summarily, finding that there was no reasonable basis for it because the interim Guardianship Order was made in accordance with the Act and it was not dependent on the efficacy of any interim removal order.

13. The stay application is late.  The delay over the last month or so has not been adequately explained. The explanation may well be that the applicant is unrepresented and unfamiliar with the requisite legal processes.

14. Whether or not there is any merit in the appeal will be addressed later today because the Court of Appeal has facilitated an urgent hearing of the applicant’s appeal later today.

15. One aspect of the application presently before the Court concerns an injunction to prevent the removal of the child from the State. The child's father resides interstate and the applicant sought to prevent any removal, including a visit that occurred between 13 and 15 December 2021. That was in issue when this application was first made and heard by the Court on 10 December 2021. However, at that first hearing the applicant sought an adjournment because she needed more time to understand the interaction of the Act and the Family Law Act 1975 (Cth). I granted the application on the basis that the applicant understood that the interstate visit would proceed. Nonetheless, the application is intended to restrain future visits or residence interstate.

16. In my view, however, and regardless of any question about merit in the appeal, the delay and any other discretionary considerations, there is no utility in granting the stay or suspension as sought. [5] 

    [5]     See, for example, Bangarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585, [27]-[41] (Colvin J): “the ultimate benefit of a successful exercise of the appeal right is in jeopardy if there is no injunction … there is sufficient strength in the argument to the effect that there was error in the primary decision to contemplate a restraint upon its being given effect…[and] a sufficiently serious consequence for the applicant if an injunction was not granted to justify depriving a party until the outcome of the appeal is known of the benefit of what is a considered determination of the issues after a final hearing.”

17. The stay is not intended to preserve the status quo pending appeal.  Insofar as it seeks a suspension of the operation of all proceedings in the Youth Court, it probably goes beyond jurisdiction and is intended to unwind the Guardianship Order. The basis for the Guardianship Order was either well-founded or it was not. This is not a case where any property will be lost, or an appeal issue will be rendered futile or nugatory, if a stay is not given. Whilst the applicant would undoubtedly prefer to spend more time with her son, an issue which I do not under-estimate, if the appeal succeeds, the Guardianship Order will be set aside. If the appeal fails, the Guardianship Order will not be set aside. The appeal will be determined, as mentioned, later today.

18. Nonetheless, that is all potentially subject to whether an order is made in the Youth Court following a trial listed to commence on 14 February 2022.  Until that occurs, any order made by the Federal Circuit and Family Court of Australia (Division 2), including a variation to the parenting orders made in 2015, will not operate for so long as the State order remains in place.[6]

    [6] See s 69ZK of the Family Law Act 1975 (Cth) and M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [9] (Doyle and Livesey JJ).

19. The applicant has not identified by evidence or argument any irreparable or other prejudice that will be sustained if a stay is refused.

20. Accordingly, I decline to make any order in terms of the application dated 8 December 2021 (as amended on 16 December 2021).

21. The application is dismissed.