SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
SB, MF v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASC 161
Judgment of The Honourable Justice Hinton
10 November 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - OTHER MATTERS
On 1 August 2016, a single Judge of the Supreme Court allowed SB’s appeal against an order made by the Youth Court transferring to the State of Queensland an order that M be under the guardianship of the South Australian Minister for Families and Communities until he attains the age of 18. The appeal Judge set aside the order and restored ancillary orders that allowed SB and his mother access to M on certain terms. A number of unrelated grounds of appeal were dismissed as were four interlocutory applications filed by SB.
SB filed a Notice of Appeal on 19 August 2016 complaining of the appeal Judge’s decision to dismiss the unrelated grounds and the interlocutory applications. The Minister subsequently filed an application seeking to dismiss the Notice of Appeal on the basis that it was an abuse of process, or in the alternative, staying the application until further order.
Subsequently, SB also filed a number of interlocutory applications dated 19 August 2016, 28 October 2016, 25 November 2016, 21 December 2016, 25 July 2016 and a Notice of Appeal dated 25 August 2017. A further Notice of Appeal dated 7 September 2017 was received by the Registrar but not filed.
Held:
1. The Minister’s application seeking to dismiss the Notice of Appeal dated 19 August 2016 as an abuse of process is granted.
2. The Notice of Appeal dated 19 August 2016 is dismissed pursuant to rules 193(b), 295(1)(c) and 295(1)(h) of the Supreme Court Civil Rules 2006.
3. The interlocutory applications filed 19 August 2016, 28 October 2016, 25 November 2016, 21 December 2016, 25 July 2017 and 25 August 2017 are dismissed pursuant to rule 193(b) of the Supreme Court Civil Rules 2006.
4. Pursuant to rule 53(3) of the Supreme Court Civil Rules 2006, the Registrar is directed to reject the Notice of Appeal dated 7 September 2017.
Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Russell v Polites Investments Pty Ltd [2016] SASC 129; Staats v United States of America (1992) 66 ALJR 793; Kronen v Commercial Motor Industries (2016) 124 SASR 427; Westwill Pty Ltd & Anor v The Barossa Council [2016] SASC 189; ACCC v CG Berbatis Holding Pty Ltd and Others (1999) 167 ALR 303, applied.
SB, MF v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASC 161Civil
HINTON J.
Introduction
On 16 November 2011, Judge Prescott, sitting in the Youth Court, made an order (the Care and Protection Order)…
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- Case
- [2017] SASC 161
- Decision Date
CaseChat Overview and Summary
The court reasoned that the appeal to the Full Court was strictly limited to the exercise of powers under section 22(3) of the Youth Court Act 1993 (SA) in relation to the judgment appealed against. The grounds of appeal raised by SB did not challenge the outcome of the appeal before the appeal Judge, as they were unrelated to the Variation Order, which was the sole subject of the appeal. Consequently, the court concluded that the grounds of appeal were frivolous and did not merit serious consideration. The court dismissed all the interlocutory applications and the Notice of Appeal filed on 25 August 2017, and directed the Registrar to reject the Notice of Appeal received on 8 September 2017.
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I turn to consider the application of these powers to the Notice of Appeal filed on 19 August 2016.Consideration I commence with the observation that the appeal heard by the judge of this Court was confined to complaints relating to the making and existence of the Variation Order. Consistent with this all of the grounds of appeal in the Notice of Appeal before the appeal Judge were aimed in one way or another at the Variation Order or the process resulting in its making. The orders made by the Judge in disposing of the appeal set aside that order and restored the ancillary orders for access to M. The Care and Protection Order was not appealed against. Thus, SB succeeded, obviating the need to consider the interlocutory applications made. No costs order was made. The fact that SB succeeded and the Variation Order was set aside suggests, without more, that her appeal to the Full Court is moot and thus the Notice of Appeal filed 19 August 2016 is an abuse of process. Meaning no disrespect to SB, who clearly has M’s best interests at heart, she does not appear to understand that an appeal is against an order and once such order is set aside, on whatever basis, it ceases to be of any force and effect. Many of the submissions made by SB before me may be described as complaints regarding the supervision and execution of the Care and Protection Order, including the investigation of possibilities that M reside with certain family members who SB considered were better suited to caring for him. None of these complaints can be entertained on an appeal to the Full Court from the judgment of the single Judge. If there is any forum in which they may be aired, it is the Youth Court on an application under the Protection Act, or, possibly, as part of an application for judicial review. It may also be said that SB appeared to consider that the powers of this Court on appeal were not circumscribed, but that relief in any respect could be granted if this Court, whether constituted by a single judge or otherwise, was of a different opinion to the judicial officers of the Youth Court or, indeed, the Minister. The appeal being instituted under s 22(1) of the Youth Court Act 1993 (SA), the appeal Judge was limited to the exercise of the powers contained in s 22(3) and then, only in relation to the judgment, within the meaning of s 22(1), appealed against. I turn to the individual grounds of appeal. Grounds one to four, seven and nine to 17, as reproduced above and contained in the Notice of Appeal filed 19 August 2016, may be considered together. Content and meaning to one side, they do not merit serious consideration by the Full Court. None of those grounds can have any consequence for the outcome of the appeal before the appeal Judge such that it is arguable that they might conceivably cause the Full Court to interfere with the orders made by the single Judge. None could result in any different order bearing in mind that the appeal before the single Judge was instituted only in relation to the Variation Order. They may be considered frivolous in that they do not merit serious consideration.