SB, MF v Minister for Education and Child Development - [2017] SASC 161

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 161
Civil
HINTON J.
Introduction

On 16 November 2011, Judge Prescott, sitting in the Youth Court, made an order (the Care and Protection Order)…

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: [2017] SASC 161
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the case of SB, MF v Minister for Education and Child Development, the Full Court of the Supreme Court of South Australia considered a series of interlocutory applications and notices of appeal brought by SB, a relative of M, a child subject to a Care and Protection Order. The primary issue before the court was whether the appeal to the Full Court from the Youth Court's decision, as well as the subsequent interlocutory applications, were appropriate exercises of the court's jurisdiction. The court found that once the Variation Order was set aside by the appeal Judge, the appeal to the Full Court became moot, rendering the Notice of Appeal filed on 19 August 2016 an abuse of process. Additionally, the court held that the interlocutory applications brought by SB were not suitable for consideration on appeal from the Youth Court's judgment, as they related to the supervision and execution of the Care and Protection Order rather than the Variation Order itself. These issues were better suited for the Youth Court or possibly judicial review.

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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Five further interlocutory applications[7] instituted by SB since 1 August 2016 have been referred to me by the Supreme Court Registry in addition to two further Notices of Appeal. I would dismiss each of the additional interlocutory applications and the Notice of Appeal dated 25 August 2017.[8] In addition I would direct the Registrar to reject the Notice of Appeal dated 7 September 2017.[9] [7] FDNs 37 in 959 of 2015, 39 in 959 of 2015, 2 in 1135 of 2016, 14 in 1135 of 2016, and 30 in 1135 of 2016.[8] SCCIV-16-1135 FDN33.[9] Date stamped as received on 8 September 2017.Background and the appeal to this Court M was relocated to Queensland by the Minister prior to the making of the Variation Order. The Variation Order was subsequently sought to facilitate support by the Queensland Authority for M and his carers. A transfer order, which the Variation Order was in the main, can only be made under s 54F of the Protection Act if, amongst other things, “the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the order”. The Queensland Authority provided its consent by letter dated 23 July 2015. That consent was made conditional upon:i.obtaining a child protection order in accordance with s 61 of the Child Protection Act 1999 (Qld) (the Queensland Act);ii.receipt of a court order to effect judicial transfer of the child protection order to Queensland;iii.M’s placement remaining viable, stable and appropriate at the point of transfer; andiv.M’s carer being granted a certificate of approval as foster carers under the Queensland Act. The Variation Order, to which reference has already been made, stated:i.the Care and Protection Order be varied to its primary order only; andii.the ancillary orders be removed on the basis of procedural necessity to facilitate the transfer of the file to the Queensland Authority. In her judgment on the appeal to this Court the appeal Judge noted:[10]… over the course of the proceedings in the Youth Court, it was noted that the carers struggled at times with the care of M. The Queensland Authority had been given casework tasks which assisted in facilitating access but they were unable, without registration of the Order in Queensland, to provide support services or intervention to work with the family.To assist K and her partner [the relatives of M to whom his care in Queensland was entrusted], the Department contracted a private agency, HOPE, to work with the family and specifically with M. In October 2015, despite working with HOPE, K and her partner advised they could no longer care for M on a full time basis but would assist with respite and have M in the school holidays.At that time, M was to remain in Queensland. The Department originally sought a home placement through the Queensland Authority, however as none was available, on 26 January 2016, M became a boarder at a boys’ college in Queensland.Due to the breakdown of M’s placement, the Queensland Authority has advised that it needs to reconsider accepting the transfer of the Order due to the instability of the placement and costs associated with M boarding at a private college.The Queensland Authority has advised that the Department would need to make a new request for the transfer of the Order and again seek conditional consent from the Queensland Authority. The Department considers it unlikely that the required consent will be forthcoming given the Queensland Authority’s intimation that the Department needs to retain case management and responsibility for the costs of the placement.[10] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [25]-[29].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HINTON J (dissent)

For completeness I note that I have received a voluminous amount of correspondence from the respondent throughout the course of managing this matter. I have had regard to all of that material, including the submissions put by her and the concerns she addresses.Conclusion I order:1.The application of the Minister filed 23 December 2016[43] as amended is allowed.[43] SCCIV-16-1135 FDNs 6 and 12.2.The Notice of Appeal filed 19 August 2016[44] is dismissed.[44] SCCIV-16-1135 FDN 1.3.The interlocutory application filed 19 August 2016[45] is dismissed[45] SCCIV-16-1135 FDN 2.4.The interlocutory application filed 28 October 2016[46] is dismissed.[46] SCCIV-15-959 FDN 37.5.The interlocutory application filed 25 November 2016[47] is dismissed.[47] SCCIV-16-1135 FDN 14.6.The interlocutory application filed 21 December 2016[48] is dismissed.[48] SCCIV-15-959 FDN 39.7.The interlocutory application filed 25 July 2017[49] is dismissed.[49] SCCIV-16-1135 FDN 30.8.The Notice of Appeal filed 25 August 2017[50] is dismissed.[50] SCCIV-16-1135 FDN 33.9.I direct the Registrar to reject the Notice of Appeal received on 8 September 2017.

Ratio Decidendi

Legal Principle Established

Established by:

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.