AB v Chief Executive Officer, Department of Child Protection
[2014] WASC 87
•21 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AB -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION [2014] WASC 87
CORAM: JENKINS J
HEARD: 10 FEBRUARY 2014
DELIVERED : 21 MARCH 2014
FILE NO/S: SJA 1097 of 2013
BETWEEN: AB
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T G SCHWASS
File No :CC 4625 of 2012
Catchwords:
Protection and care of children - Appeal - Whether child in need of protection - Whether error in making a protection order (until 18) instead of a protection order (time-limited) - 'No order' principle
Legislation:
Children and Community Services Act 2004 (WA), s 3, s 8, s 9, s 28, s 45, s 46, s 47, s 50, s 54, s 55, s 57, s 58, s 147, s 148
Result:
Appeal allowed, in part
Order for a protection order (until 18) quashed
Order for a protection order (time-limited) made
Category: B
Representation:
Counsel:
Appellant: Mr S A Walker
Respondent: Mr S J Jones
Solicitors:
Appellant: Reader Lawyers & Mediators
Respondent: Department for Child Protection
Case(s) referred to in judgment(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40
JENKINS J:
The decision under appeal
The appellant appeals from the decision of a magistrate sitting in the Children's Court of Western Australia at Perth on 23 July 2013 that the respondent have parental responsibility for the appellant's child, BC, (born in late November 2012) until he reaches the age of 18 years.
Names, dates of birth and other personal particulars have been anonymised in these reasons to protect the identity of BC and the appellant's older children.
Grounds of appeal
The proposed grounds of appeal are as follows:
(1)The learned magistrate erred in law and fact in making a protection order when the evidence was incapable of sustaining a finding that the child was a child in need of protection, either on the grounds asserted or on any grounds available under the Children and Community Services Act 2004;
(2)The learned magistrate erred in law and fact in making a protection order until age 18 when the evidence and findings, at their highest, were capable of supporting no other order than a supervision order or a time‑limited order;
(3)The learned magistrate erred in law and fact in placing excessive weight on evidence relating to the past history and welfare of the Appellant's two older children and in having inadequate or no regard to the evidence of the Appellant's parenting history and capacity in the period since the birth of BC; and
(4)The learned magistrate erred in law by misdirecting himself as to the terms of s 46 of the Children and Community Services Act 2004 and as a result failed to correctly apply the 'No order principle' set out in that section.
The application for leave to appeal on the first three grounds was ordered to be heard at the same time as the appeal. At the hearing of the appeal I granted the appellant leave to add the fourth proposed ground of appeal and ordered that the application for leave to appeal on that ground should also be heard at the same time as the appeal.
Court proceedings
On 30 November 2012, the respondent applied to the Children's Court for a protection order (time‑limited) for two years in relation to BC. The ground for the application was stated as being that BC was in need of protection pursuant to the Children and Community Services Act 2004 (WA) (the Act) s 28(2)(c)(iii) and (v).
The hearing of the application took place on 22 and 23 July 2013. The respondent called two witnesses to give oral evidence. They were Nicolle Brownlie, a senior field officer employed by the respondent, and Elaine Atkinson, a clinical psychologist. The respondent also tendered a number of documents.
The appellant called three witnesses to give oral evidence. They were Joanne McNamara, a senior social worker employed at Kaleeya Hospital and the appellant's parents. Each of the appellant's parents had made an affidavit and these were also tendered in evidence.
At the conclusion of the evidence, the magistrate heard submissions from counsel and immediately delivered oral reasons for his decision. Without having heard the parties on whether a protection order (until 18) ought to be made, the magistrate made such an order pursuant to the Act s 57.
Although it is not a matter about which the appellant complains, I note that the respondent's application named the appellant as the only respondent to the application. The Act s 147 is clear and mandatory. It states that in protection proceedings the child and each parent of the child is a party to protection proceedings. It is essential that s 147 be observed so as to ensure that the respondent and the court gives proper consideration to the interests of those whom the legislature has stated are to be parties to protection proceedings.
In this case there was a discussion with the magistrate about the absence of the father of BC. The magistrate was satisfied that he was aware of the proceedings and that he did not wish to be involved in them. Nevertheless, the father should have been a party to the proceedings. A parent should be formally served with the application and all other documents relating to the proceedings. A parent should not be able to avoid involvement in their child's upbringing so easily.
It appears to have been assumed that because BC was a baby and too young to express a view on his placement that it was unnecessary for him to be joined as a party. Nevertheless, ensuring that every child to protection proceedings is a party to the proceeding is one way of ensuring that the other parties are cognisant of the rights of the child, who is the subject of the proceedings.
If representation could have been made available to BC, the court may have been assisted by having an independent advocate for BC present. The Act s 148 contemplates this. If Legal Aid was not available to fund the representation, funds may have been available from another source, such as from BC's relatives. I do not know if that would have been the case but I do not see why the potential financial problems in obtaining representation for BC, if that was an issue, should have prohibited BC from being named as a party to the proceedings and the issue of BC's representation being considered by the court.
The magistrate's decision
The magistrate's oral reasons were reduced to writing and published to the parties.
The reasons commence by identifying that the respondent was seeking an order committing BC, who was born in late November 2012, to the care of the respondent for two years. His Honour said that the application was based on the Act s 28(2)(c)(iii) and (v) which state that a child is in need of protection if the child has suffered, or is likely to suffer, harm as a result of emotional abuse or neglect and the child's parents have not protected, or are unlikely or unable to protect, the child from harm or further harm, of that kind.
The magistrate then gave a brief history being that the appellant, who is BC's mother, has two older children who were born in June 2006 and September 2007, respectively. He noted that they were apprehended as children in need of protection and that a protection order (time‑limited) had been made for two years. That protection order was about to expire and the respondent was intending to make an application for a protection order (until 18).
His Honour said that the first matter for consideration was whether BC was a child in need of protection. His Honour noted that although the standard of proof was to the balance of probabilities, regard must be had to the serious consequences which follow from such a decision.
Without giving reasons, the magistrate found that he was satisfied to the required standard that BC came within the definition of a child in need of protection. The magistrate said that, therefore, he was obliged to consider other matters the first of which was whether, under the Act s 46, it was in BC's 'best interests that there be no order made'. His Honour noted that before he could make a protection order (until 18) he had to be satisfied, under the Act s 58, that long term arrangements should be made for BC's care. His Honour said that he was satisfied to the required standard that an order should be made and that it was in BC's best interest that long term arrangements should be made for his care by a protection order (until 18).
His Honour then set out the statutory matters which must be taken into account in determining what is in a child's best interests and the guiding principles which must be observed in the administration of the Act. Those matters are provided for in the Act s 8 and s 9 which state:
8.Determining the best interests of a child
(1)In determining for the purposes of this Act what is in a child's best interests the following matters must be taken into account -
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i)the child's parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child's life;
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i)the child's age, maturity, sex, sexuality, background and language;
(j)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
(k)the child's physical, emotional, intellectual, spiritual, developmental and educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child's circumstances.
(2)Subsection (1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.
9.Principles to be observed
In the administration of this Act the following principles must be observed -
(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
(c)the principle that every child should be cared for and protected from harm;
(d)the principle that every child should live in an environment free from violence;
(e)the principle that every child should have stable, secure and safe relationships and living arrangements;
(f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;
(g)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(ha)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long‑term stability for the child;
(h)the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;
(i)the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;
(j)the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision‑making processes under this Act that are likely to have a significant impact on the child's life;
(k)the principle that a child's parents and any other people who are significant in the child's life should be given adequate information, in a manner and language that they can understand, about -
(i)decision‑making processes under this Act that are likely to have a significant impact on the child's life; and
(ii)the outcome of any decision about the child, including an explanation of the reasons for the decision; and
(iii)any relevant complaint or review procedures;
(l)the principle set out in section 10(1).
His Honour found that the most significant guiding principle applicable to the case was that BC's parents and family have the primary role in safeguarding and promoting the child's wellbeing. The magistrate also noted that it was relevant that BC should be cared for and protected from harm, should live in an environment free from violence and have stable, secure and safe relationships and living arrangements.
In these respects the magistrate noted that BC was placed, soon after birth, with the appellant's parents and that he remains living in their home. His Honour said that he had seen for himself that BC was a healthy child.
The magistrate noted the principles in the Act s 9(g) that if BC was removed from his family, it was in his interests that encouragement should be given to maintaining contact with his parents and other relatives.
In respect of the Act s 9(h) which requires that a decision should be made promptly, the magistrate noted that Ms Atkinson was concerned that whilst BC was forming his primary attachments, he was particularly vulnerable and he should be in the best placement possible. The magistrate acknowledged that pursuant to s 9(j) BC's parents and others should be given an opportunity, and assistance, to participate in the decision making process.
The magistrate then considered the Act s 8. He identified a number of the sub‑paragraphs as being relevant. The only matters of substance that he noted were:
(1)it had been demonstrated that BC was 'more than comfortable' in the appellant's arms;
(2)it was important that there be continuity and stability in BC's living arrangements;
(3)the evidence of Ms Atkinson was that it was important that whilst BC was developing that he be in a secure and safe environment; and
(4)that although it was too early to be certain, BC appeared to be a healthy child and there were no prospects of him being bound to suffer the deficits of his two siblings.
His Honour noted that there was no evidence as to the appellant's independent care of BC because the respondent had decided to apprehend BC at birth. As a consequence he had been placed with the appellant's parents since his birth. Nevertheless, the appellant had unlimited contact with BC at her parents' home. The magistrate acknowledged that the appellant spent most of her time, including staying overnight, in the home of her parents caring for BC. His Honour noted that BC's grandfather worked and his grandmother, who was a registered nurse, had arranged to be permanently in the home.
In determining what was in BC's best interests, the magistrate then took into account a report, dated 20 August 2010, prepared by Kim Urwin, a clinical psychologist employed by the respondent. By way of background, the report states that:
(1)the appellant's two older children were born to the appellant and different fathers;
(2)the appellant had been diagnosed with 'Cluster C personality disorder, ie (anxious/fearful type) and has had prior episodes of drug‑induced psychosis';
(3)the older children had been taken into provisional protection and care in May 2009 following a long period of involvement with the respondent due to concerns about exposure to domestic violence, chronic neglect, unhygienic living conditions (ie presence of food scraps, faeces, blood, vomit and urine), lack of parental supervision, and failure to access services to promote the children's development;
(4)departmental workers had reported that the children were frequently presented with soiled and/or wet nappies, were fearful and made low, growling noises;
(5)after intervention, the older children were assessed by a paediatrician who reported that the children were malnourished, displayed unusual behaviours consistent with neglect and had head lice. The older child also had bite marks on her body.
The magistrate noted that there had been no challenge to the summary of the background which was contained in Ms Urwin's report.
His Honour then referred to the next paragraph of Ms Urwin's report which states:
The children were initially placed with Departmental foster carers [name omitted], however were placed with Wanslea carers after 5 days due to the impact of the children on the well‑being of the existing children in the placement. The Wanslea placement broke down after a few weeks due to the carers' difficulties managing the children's behaviours. For example, the children were fearful of water making it difficult to shower or bathe them, they fought for food, screamed for hours and were difficult to settle, and had difficulty separating from the carer making it difficult for the carers to attend to day‑to‑day household duties. In addition, [the oldest child] would wipe faeces over the house. [The oldest child] and [the younger child] have been in placement with Key Assets foster carers, (names omitted) since June 2009. (Name omitted) reside in (location omitted) with their two older girls and young infant. Both carers currently care for the children on a full‑time basis and neither work outside of the home. The High Needs Placement was intended as a short‑term placement, however difficulties in locating suitably skilled carers to look after the children has meant that they have remained in the placement for 14 months with a lack of certainty about when they might move.
The magistrate said that he had no difficulty in accepting the above evidence. The magistrate accepted that given the situation with the two older children, the respondent's concerns about BC were well placed and that it was 'entirely proper that [BC] be taken into care when he was'. I digress to note that the arrangement whereby BC went to live with the appellant's parents as soon as he left hospital after his birth does not appear to be as a result of a formal court order. Rather, it occurred by the agreement of all parties after the respondent said that an application would be made for a protection order if BC was taken to the appellant's home.
His Honour said that the respondent had come to the view that the 'best place for [BC] is in the care of [the appellant], albeit with the grandparents having ultimate authority' [24].
His Honour then said that the evidence of Ms Atkinson had 'determined this matter' and that he had no difficulty in accepting her evidence. He said that Ms Atkinson is a very experienced clinical psychologist, has been working for many years in the area of children in need of protection and is highly regarded. He regarded that the crux of her evidence is that:
On balance, however, given the attachment that is developing, I consider that [the appellant] should be given the opportunity to parent [BC] as a sole, responsible parent, and that a reunification programme should be developed to this end. This must however be contingent on [the appellant] agreeing to accept a range of supports and monitoring until it is deemed that she can manage without close scrutiny. This would of necessity mean that she would have to accept the involvement and authority of DCP, and be subject to regular reviews.
Monitoring and support would need to include:
•weekly checks by DCP
•regular medical checks
•safety assessments of the home
•home visitor to provide support and advice
•clear expectations regarding home hygiene and physical care of baby [BC]
•involvement in a parenting programme
•involvement in play groups or other social situations
•the grandparents to have visiting rights [25].
The magistrate noted that, even after close cross‑examination, Ms Atkinson's evidence remained that on current indications it was in BC's best interests that there be an attempted reunification with the appellant because she should be given an opportunity to reunite with BC. The magistrate noted that the law was that it was not whether the appellant should be given that opportunity but was rather that it should be ensured that BC had the best chance of being raised with his mother as his primary caregiver.
The magistrate found that it had not been proven that the appellant could 'effectively parent [BC] by herself'. His Honour found that the care that BC was receiving from the three adults in his life (the appellant and his two maternal grandparents) should continue until it was clearly established that the appellant could care for BC and that the appellant herself was confident in her ability to do so. His Honour noted that currently the appellant 'appears well' and that there was no suggestion that she was using illicit drugs.
His Honour said that he was anxious that the attempt to have BC raised by his mother, the appellant, was given every chance. He said that every effort should be made to ensure that the current 'good arrangement' is not jeopardised. He said that if the respondent was satisfied that it was in BC's best interest for him to move into the appellant's independent accommodation then that should occur.
The magistrate referred to the fact that the court had the option of making an order for two years or until the age of 18. He said that if an order was made for two years and things did not go well the respondent could always apply to extend the order. On the other hand, his Honour said that if an order was made until the age of 18 and 'things went well', the department's involvement with BC and his family could become 'somewhat nominal'. The magistrate also noted that it was an easy enough matter to make application to discharge the order. The magistrate then stated that it was his view that on balance it was in BC's best interest for there to be an order until 18 which would maximise the chances of BC being raised ultimately by his mother. His Honour then made the order.
Ground 1
Ground 1 challenges the magistrate's finding that BC was a child in need of protection. A finding that a child is in need of protection is a precondition to the making of any protection order. The appellant submits that on the evidence, including that of her parents, Ms Brownlie and Ms McNamara, that finding was not open to the magistrate. She submits that the magistrate could have only concluded that:
(a)she was now single, and had nothing to do with the men with whom she had earlier relationships, which included domestic violence;
(b)BC did not have any of the developmental or congenital conditions found to exist in the case of his two elder siblings;
(c)she was now functioning much better than she had been in 2009, in particular she was now somewhat better regulated emotionally;
(d)the psychiatrist who had recently assessed her considered that she was currently stable, and that there was no need for psychiatric follow up;
(e)she had attended her antenatal appointments and had engaged well with Ms McNamara, the social worker at Kaleeya Hospital, where BC was born;
(f)during her inpatient admission on the post‑natal ward she had been very attentive when interacting with BC, she and BC had appeared very attached and she had bonded with BC;
(g)the observations of the midwives involved in her care indicated that she was mother crafting independently, appeared attentive to BC's cues, and was bonding well with him;
(h)she had cooperated in placing BC at her parents' house, and in working jointly with her parents to ensure his care;
(i)there were some signs, observed by the expert Ms Atkinson, that a secure attachment was forming in the context of her (the appellant) providing predominant care following discharge from hospital;
(j)she had been observed to be able to provide warm physical contact and the physical care that is required for an infant;
(k)she had also been noted to be verbally affectionate and encouraging towards BC; and
(l)she and the maternal grandparents were willing to continue the current arrangement, which effectively ensured joint care by her and BC's grandmother, but with the grandparents having the power to make decisions about care.
The respondent does not dispute these matters but submits that the appellant's identification of relevant evidence fails to identify the evidence which was not favourable to her. The respondent submits that if this evidence is taken into account, the magistrate's finding that BC is a child in need of protection was open to him and was the correct decision. The respondent submits that the following evidence supports the magistrate's finding that BC is in need of protection:
(a)the appellant was involuntarily admitted to Graylands Hospital for two weeks in early 2002 where she was diagnosed with a psychotic disorder, probably drug‑induced, a Cluster C personality disorder and, possible, poly‑substance abuse;
(b)following the 2002 admission, there had been steady deterioration in the appellant's functioning up until 2010;
(c)in May 2009, the older two children were taken, by the respondent, into provisional protection and care. This followed a 'long period of [the respondent's] involvement due to concerns about exposure to domestic violence, chronic neglect, unhygienic living conditions … lack of parental supervision and failure to access services to promote the children's development';
(d)reports of the observations of the respondent's staff, the police and Department of Housing staff between 2007 and 2009 of the appellant's poor living conditions and her substandard parenting of the older children;
(e)Ms Atkinson's conclusions in her report of 15 February 2010 that:
It was apparent that [the appellant] had a fixed view in relation to the children's removal and showed no insight into the level of concern for the children's development and well‑being. She did not accept there were problems with parenting, and did not show any openness to need for change. Developmental delays were either denied or rationalised away by blaming [the respondent].
(f)the report of Michele Arthur, clinical psychologist, dated 17 August 2010, who acknowledged that it would not be uncommon for parents of apprehended children to feel persecuted by the respondent but concluded that the appellant's feelings of persecution by the respondent were beyond those reasonably expected given her situation;
(g)the report of Dr C E Derrick, consultant paediatrician, who examined the eldest child on 27 May 2009, shortly after she had been taken into provisional protection. Dr Derrick concluded that it was 'fairly clear' from her reported behaviour that the child had 'been neglected to some extent'. He said that there was obvious developmental delay which could be associated with neglect and which needed close monitoring;
(h)the report of Dr Derrick after he saw the younger child on 27 May 2009. Dr Derrick said that the younger child's behaviour would indicate that he had been neglected;
(i)the appointment of the public advocate on 11 January 2011 as guardian for the appellant;
(j)the comment of Sarah Mitchell, a social worker at Wanslea Family Services, in her report dated 28 February 2012 made after the appellant had participated in the Wanslea Creating Stronger Families Programme that due to the 'high stress' that the appellant carries from having the older children removed from her care and the concerns she has for their wellbeing, that she (Ms Mitchell) found it very difficult to address parenting skills with the appellant as she would often become distressed and defensive at others' suggestions. Ms Mitchell recommended that depending upon the appellant's wellbeing, contact with her older children be increased to lengthier time periods so that the appellant and the children could settle into each other's company and the appellant could prepare a meal for the children, implement routines, and play with them. Ms Mitchell recommended that the contact continue to occur at the appellant's parents' home;
(k)the observation of the respondent's staff that in July and August 2012 the appellant's house was observed as becoming neglected. For example, the kitchen, toilet and bathroom were very dirty and unhygienic;
(l)Ms Brownlie's observations in January/March 2013 during four home visits that the appellant's house was a mess, with dirty floors, dirty dishes, cluttered floors and a general lack of cleanliness;
(m)the report of Ms Atkinson dated 12 April 2013 which noted the following matters:
(i)the appellant's inconsistent accounts of various matters, including previous history of domestic violence, accounts of the development of the older children whilst they were in her care and since they have been in the care of the respondent, and her understanding of why her children have been taken into care;
(ii)the appellant's belief that any of the problems of the older children were due to them being taken into care or had been 'cooked up' by the respondent;
(iii)the appellant's difficulty in accepting information and being reluctant to accept advice;
(iv)the appellant's poor awareness of child development, her marked tendency to overestimate her children's development and to over interpret signs of development;
(v)the appellant's intrusive parental behaviour with BC and her interaction with her older children in a way that was beyond their level of comprehension; and
(vi)the appellant's disbelief that she had neglected her older children, that they had any developmental problems or that she needed advice in order to ensure that BC would not be neglected and would develop appropriately;
(n)Ms Atkinson's opinion that the appellant should be given the opportunity to parent BC as a sole, responsible parent and that a reunification programme should be developed to this end. However this was contingent on the appellant agreeing to accept a range of supports and monitoring 'until it is deemed that she can manage without close scrutiny'. Monitoring and support would need to include regular checks by the respondent, regular medical checks, safety assessment of the appellant's home, a home visitor to provide support and advice, clear expectations regarding home hygiene and physical care of BC, involvement of the appellant in a parenting programme, involvement of the appellant and BC in playgroups or other social situations and the grandparents having visiting rights.
There is no dispute between the parties that the decision whether or not to find that a child is in need of protection and to make other findings leading to the making of a protection order, are discretionary judgments. The discretion must be exercised in accordance with the objects and principles espoused in the Act: PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [45].
Relevant to ground 1, the first matter that the magistrate had to be satisfied of was that BC was in need of protection pursuant to the Act s 45. Given the particulars that the respondent had relied upon, this meant that the magistrate had to be satisfied, on the balance of probabilities, that BC was likely to suffer harm as a result of emotional abuse and/or neglect and that BC's parents, in particular the appellant, were unlikely or unable to protect BC from harm of that kind.
The Act s 3 defines 'harm' to include harm to a child's physical, emotional or psychological development. The Act s 28(1) also relevantly defines 'harm' as any detrimental effect of a significant nature on a child's wellbeing. 'Neglect' is defined in the same section to include failure by a child's parents to provide, arrange, or allow the provision of adequate care for the child or effective medical, therapeutic or remedial treatment for the child.
As Murray J found in PVS:
While the Act as a whole imports a discretionary judgment and requires the court to refrain from acting unless satisfied that a protection order is required in the best interests of the child, it is written in such a way as to permit the court to act where necessary to prevent the occurrence of likely future harm where it is judged that the necessary protection for the child has not been, is unlikely to be, or is unable to be provided by the parent or parents [143].
The appellant does not dispute the correctness of other comments made by Murray J in PVS to the effect that in an appeal from a decision of a magistrate under the Act, the Supreme Court should give due weight to the magistrate's advantage of having heard the evidence and the witnesses at first instance and not intervene unless there is something in the material before the court which shows that, despite that advantage, the decision of the court of trial was for any reason clearly erroneous (see also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] ‑ [14]). Although such an appeal is by way of a re‑hearing on the basis of the material which was before the Children's Court, the Supreme Court must independently review that evidence in order to determine the appeal. The court must not shrink from overturning the judgment of the Children's Court if its independent assessment of the evidence shows that it was erroneous.
Having regard to those principles, I am not of the view that the magistrate's discretion miscarried or that, as alleged in ground 1, the evidence in the Children's Court was incapable of sustaining a finding that BC was a child in need of protection.
Clearly, as BC had never been in the sole, day to day care of the appellant, the issue for the magistrate was whether BC was likely to suffer harm (rather than, had suffered harm) and whether the appellant was unlikely or unable to protect BC from future harm.
The evidence regarding the appellant's current mental and psychological health is encouraging as are some of her recently observed parenting skills. However, those favourable matters had to be weighed against other factors, some of which I have listed above when dealing with the respondent's submissions.
Also the positive matters on which the appellant relies have been exhibited in the context of the appellant not having sole responsibility for BC and her caring only for BC in the structured context of her parent's home, with their support and supervision. If that was the sole context which the magistrate had to consider it would have been difficult for him to substantiate a finding that BC was likely to suffer harm. However, the question as to whether a child is in need of protection must be determined by considering the child's circumstances if no order is made under the Act. If no order had been made under the Act, the appellant would have been free to return BC to her home and not avail herself of any support from either her family or the authorities. Given the appellant's consistently negative views of the respondent and the child health services, her general unwillingness to accept advice when it came to raising her children and her ambivalence towards her mother, there was a substantial risk that if no order was made that would be the outcome. For these reasons I reject the appellant's submission that the magistrate had to determine the application in the context of BC living with his grandparents with his mother having daily access to him.
Given that context, the magistrate had to weigh the favourable factors which suggested that BC was not in need of protection against the appellant's history with her older two children and other circumstances which impacted on the appellant's ability to protect BC from harm. As the appellant's counsel made clear at the appeal hearing, the appellant did not concede that she had emotionally abused or neglected her older two children. The magistrate clearly was of the view that she had. In my opinion, this opinion was open and on the balance of probabilities was the only view that the magistrate could have come to.
It is true that after the older two children were taken into care it was found that the oldest child had agenesis of the corpus callosum and that this condition contributed to the child's developmental delay and autistic features. However, Dr Derrick was aware of this diagnosis when he stated in his report of 16 June 2009 'it seems fairly clear from her behaviour that [name omitted] has been neglected to some extent'. Dr Derrick went on to say that the elder child had 'obvious developmental delay which could be associated with neglect and which needs close monitoring'. Further, Ms Atkinson noted in April 2013 that in the time the elder child had been in care much of her improvement in functioning could be attributed to the quality of care, familiarisation with carers and consistency and repetition of routine.
In respect of the younger child, Dr Derrick concluded that he was a child 'at risk of abuse'. He said that his behaviour would 'indicate that he has been neglected'. Whilst the evidence before the magistrate was to the effect that the younger child had been diagnosed with global developmental delay, autism, a sensory processing disorder and a high pain threshold, Ms Atkinson noted that he had made 'some good progress since being taken into care'.
The overall impression which I have gained from reading the evidence is that both of the appellant's older children have problems which are, in any event, likely to adversely affect their development. However, in the period in which the appellant had the sole care of those children she had failed to identify their problems, failed to seek help for them and failed to provide, to a significant extent, the care and environment needed to protect children with their problems from harm. This resulted in those children suffering neglect as that term is defined in the Act s 28(1).
There is the further concern that since the children had been taken into care and, indeed, up until the hearing of this appeal, the appellant has not acknowledged her older children's problems, that she failed to adequately ensure that they had the extra care required because of those problems and the need for her to be more sensitive to BC's needs should she have the care of BC, than she was to the needs of her older children when she had the care of them.
The evidence before the magistrate had to be considered by him in the context that no responsive evidence was presented concerning the neglect that the older children had suffered. All of the appellant's evidence was in respect to her current parenting skills.
Consequently, the evidence established that four years before the hearing of the application for the protection order relating to BC, the appellant had had the care of her two older children, one for three years and one for two years, and during that period of time she had chronically neglected those children. Further, the appellant still lacked insight into her older children's problems, her failure to meet those problems and their present needs. The expert evidence presented by the respondent and accepted by the magistrate was that the appellant still had some of the problems which had led to the older children's neglect. Thus, despite the positive signs I have mentioned, it cannot be said that the evidence was incapable of sustaining a finding that BC was a child in need of protection. For these reasons ground 1 of the appeal is not made out.
Ground 2
Putting to one side the 'No Order Principle', which is dealt with in ground 4, once a child is found to be in need of protection the court may make the protection order sought in respect of the child or make another protection order in respect of the child: the Act s 45.
There are four types of protection orders which a magistrate may make. The first is a protection order (supervision) which is an order providing for the supervision of the wellbeing of a child by the respondent for a period not exceeding two years. A protection order (supervision) does not affect the parental responsibility of any person for the child except to the extent (if any) necessary to give effect to the order: the Act s 47(2). It is a condition of every protection order (supervision) that a parent of the child keeps the respondent informed about where the child is living. However, a protection order (supervision) must not include a condition about with whom the child is to live, unless the conditions relate to the child living with a parent. Neither can a protection order (supervision) include a condition as to who is to have responsibility for the day‑to‑day care, welfare and development of the child: the Act s 50.
The second type of protection order which may be made is a protection order (time‑limited) which is an order giving the respondent parental responsibility for a child for a period not exceeding two years: the Act s 54 and s 55.
The third type of protection order which may be made is a protection order (until 18) which is an order giving the respondent parental responsibility for a child until the child reaches 18 years of age: the Act s 57. Both a protection order (time‑limited) and a protection order (until 18) give the respondent parental responsibility for the period of the order to the exclusion of any other person. A court must not make a protection order (until 18) unless the court is satisfied that long‑term arrangements should be made for the wellbeing of the child: the Act s 58.
The fourth type of protection order which may be made is called a protection order (special guardianship). As neither party has suggested that this was an appropriate order to make, I will say no more about it.
It is relevant to note that neither party suggests that it was not open to the magistrate to make a protection order other than the one sought in the respondent's application. The Act s 45 specifically empowers the court to make either the protection order sought in the application or another protection order.
I am satisfied that the magistrate erred in making a protection order until the age of 18 because the evidence and findings, at their highest, were not capable of supporting a finding that a protection order (until 18) was required and that long‑term arrangements should be made at this time for BC.
The reason for this is that the evidence was all to the effect that:
(1)the appellant's circumstances were as stable as they had been since, at least, 2002;
(2)the appellant did not require ongoing psychiatric or other psychological treatment;
(3)the appellant was not in a domestic relationship which was abusive or which endangered her or BC;
(4)the appellant was expressing a willingness to work with the authorities, her parents and the respondent in order to ensure that BC was not abused or neglected;
(5)Ms Atkinson, whom the magistrate relied on, was of the opinion that the appellant should be given the opportunity to parent BC as a sole, responsible parent and that a reunification programme should be developed to that end;
(6)the respondent had, apparently, agreed with Ms Atkinson's proposal; and
(7)the respondent's application was only for a protection order (time‑limited).
In these circumstances, it was not open for the magistrate to find that a protection order (until 18) was in BC's best interests. Neither was it open for him to find that long‑term arrangements should be made for the wellbeing of BC.
In making the protection order (until 18), the magistrate principally appeared to be influenced by the proposition that if it all went well, the respondent's involvement with BC and his family could become 'somewhat nominal' and that it was 'an easy enough matter' to make an application to discharge the order. In my view, these considerations were of little, if any, significance. The issue for the magistrate was whether, at the time he made the decision, it had been proven on the balance of probabilities that it was in BC's best interests for a protection order (until 18) to be made which would give the respondent exclusive parental responsibility until BC was 18 years of age. In making this decision the magistrate had to apply the principle in the Act s 9(a) that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing. On the other hand, there are guiding principles which emphasise that every child should have stable, secure and safe relationships and living arrangements and that planning for a child's care should occur in order to ensure long‑term stability for the child.
The fact is that BC is very young. Given that the respondent's short to medium term plan is to attempt to reunite BC with the appellant in a safe, responsible parent role, it is too early to make the judgment that it is in BC's best interests for the respondent to have exclusive parental responsibilities for him until he reaches 18 years of age. That judgment may be able to be made in two years' time at the end of a protection order (time‑limited).
Although his Honour did not say that he was influenced in making the protection order (until 18) by the fact that the respondent was making or intended to make an application for such an order in respect of the older children, in my view the older children's situation can be easily distinguished from that of BC. There is no short or medium term plan for them to be reunited with the appellant. Further, those two children are older, they have exceptional needs and, given their ages and particular issues, the principle of planning for their care in order to ensure long‑term stability for them, is more important than it is in respect of BC.
Before I move on to consider whether the evidence justified another type of protection order being made, I note again that the magistrate did not canvas the option of making a protection order (until 18) with the parties before he made the order. This was undesirable. The magistrate was required to provide a fair hearing to the parties. This included giving a party notice of an order which may be made which would be prejudicial to that party's position and which could not be easily anticipated. Not only must notice be given, but the party must be given an opportunity to be heard in opposition to the making of such an order. See Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40 [10]. It is not sufficient to say that a party should know that by reason of the Act s 45 that the magistrate may make an order other than the one sought in the application being considered by the court. There would potentially be a great waste of time if parties were to make submissions about the suitability of all possible protection orders, simply because the parties did not know which order the magistrate may make. It is essential for a Children's Court magistrate to advise a party if he or she is considering making an order which is not sought in the application that is then being determined and which is less favourable to the party's interests than the order being sought.
The appellant submits that not only did the evidence not support the order made by the magistrate but that, if it supported any order being made, it only supported a protection order (supervision). I disagree. The evidence which the magistrate accepted was overwhelmingly to the effect that it was in BC's best interests for attempts to be made to have him live independently with the appellant but that this should only occur in supervised and gradual steps. It is quite apparent that a protection order (supervision) could not ensure that this occurred. This is because a protection order (supervision) must not include a condition about with whom BC was to live, unless the condition related to him living with the appellant or his father: the Act s 50(3).
On the other hand, a protection order (time‑limited) for a period of two years would enable all reasonable efforts to be made for BC to be cared for by the appellant in a stable, secure and safe relationship and living arrangement.
For these reasons I would grant leave to appeal on ground 2 and allow the appeal from that ground. I would quash the magistrate's decision that the respondent have parental responsibility for BC until he reaches 18 years of age and substitute an order that the respondent have parental responsibility for BC for a period of two years, pursuant to the Act s 54.
Ground 3
In deciding grounds 1 and 2, I have already considered the issues raised in this ground. The magistrate's decision was a discretionary one. On appeal, a court will be loath to interfere with a discretionary decision on the basis of an allegation that the decision‑maker placed too much weight on a particular matter. The question of weight in the exercise of a discretionary decision is a matter for the decision‑maker at first instance. Indeed it has been said often, that an appellate court may not substitute its own opinion for that of the decision‑maker at first instance merely because it would have exercised its discretion in a different way. The appellate court can only interfere if completely irrelevant considerations have been taken into account or if relevant considerations have been plainly ignored. An appellate court should not set aside an order made in the exercise of a judicial discretion 'unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court': Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 ‑ 615. The same can be said about an allegation that excessive weight was given to relevant considerations.
I do not agree that the magistrate erred in either law or fact by placing excessive weight on the evidence relating to the past history and welfare of the appellant's two older children and by having inadequate regard to the evidence of the appellant's parenting history and capacity in the period since the birth of BC. The magistrate referred to the evidence relating to both issues and in the exercise of his discretion determined the weight to be given to them. He exercised his discretion rather than failed to exercise his discretion. For these reasons ground 3 of the appeal is not made out.
Ground 4
The appellant complains of the way the magistrate articulated the 'No Order Principle' set out in the Act s 46 which states:
The court must not, on a protection application, make a protection order in respect of a child unless the court is satisfied that making the order would be better for the child than making no order at all.
When stating this principle his Honour said:
I am firstly obliged, under s 46, to consider whether, in the current circumstances, it is in [BC's] best interests that there be no order made [7].
The appellant, uncontroversially, submits that the 'No Order Principle' is a prohibition on the court making a protection order unless it is satisfied on the balance of probabilities that making the particular order would be better than making no order at all. The appellant's complaint is that his Honour 'inverted the true nature and effect of s 46' by stating that he was obliged to consider whether it was in BC's best interests that there be no order made. The appellant submits that articulated in that manner, the principle required the appellant to satisfy the magistrate that it was in BC's best interests for no order to be made. Whereas, the obligation was on the respondent to satisfy the magistrate that a protection order should be made.
The respondent submits the magistrate did not misdirect himself. He points out that the magistrate's comment was made in ex tempore reasons for decision by a very experienced magistrate. He further points out that in the transcript of the proceedings in the Children's Court, it is clear that only a minute or so before his Honour made that statement, the appellant's counsel had reminded his Honour that the case needed to be decided on the basis of BC's individual circumstances taking into account what was in his best interests. Counsel had then quoted, in substance, s 46.
The respondent also relies on the remainder of the magistrate's reasons which he submits proves that the magistrate did not place any onus on the appellant to prove that it was in BC's best interest that no order be made.
This ground of appeal raises two issues. The first is whether the magistrate applied the wrong statutory test under s 46. The second is whether his Honour reversed the onus of proof.
As to the first issue, the statutory test is expressed in terms of whether making the protection order then under consideration by the magistrate is better for the child than making no order at all. There is, however, little if any difference between that test and considering whether the court is satisfied that it is in BC's best interest that no order be made. The statutory test requires a consideration as to which of two options is better for the child, in other words what is in the child's best interests, either making the protection order under consideration or not making a protection order at all. The way the magistrate articulated it would also require him to consider whether it was in the child's best interests to make no order as opposed to some other situation, which in the context of a protection application must be making the protection order under consideration.
Next, I note that in [20] the magistrate stated that the issue for him was 'what order, if any', 'is in [BC's] best interests'. This comment indicates that the magistrate was aware that he had to consider whether a protection order of any sort would be better for BC than making no protection order at all.
Thus, whilst it is regrettable that the magistrate created the basis for this ground of appeal by not using the statutory words, I am not satisfied that his Honour's articulation of the 'No Order Principle' disclosed error.
As to whether by articulating the 'No Order Principle' in the way that he did, the magistrate reversed the onus of proof, I can only proceed on the basis of what the magistrate said in his reasons for decision. First, the magistrate did not say either expressly or impliedly that the onus was on the appellant to prove that it was in BC's best interests that no order be made. Secondly, there is nothing in the judgment to indicate that he proceeded on this basis. The magistrate's reasons make it clear that he understood that he was determining the respondent's allegation that BC was in need of protection and the respondent's allegation that a protection order ought to be made. It is true, and regrettable, that the magistrate did not articulate the onus of proof. Nevertheless, I am not satisfied that in the one sentence in [7] that the appellant relies upon or in the magistrate's reasons, read as a whole, that the magistrate erred by reversing the onus of proof. For these reasons ground 4 of the appeal is not made out.
Conclusion
For the above reasons I grant leave to appeal on ground 2 and allow the appeal on that ground. I quash the magistrate's order and substitute an order pursuant to the Act s 54 that the respondent have parental responsibility for BC for a period of two years.
I refuse leave to appeal on the remaining proposed grounds of appeal.
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