AC v Chief Executive Officer of the Department for Child Protection and Family Services
[2015] WASC 477
•11 DECEMBER 2015
AC -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SERVICES [2015] WASC 477
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 477 | |
| 11/12/2015 | |||
| Case No: | SJA:1066/2015 | 7 DECEMBER 2015 | |
| Coram: | BEECH J | 7/12/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | AC CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SERVICES JT GC |
Catchwords: | Appeal Appeal from magistrate decision to grant a protection order Whether natural justice required magistrate to permit child's representative to cross-examine witnesses Turns on own facts |
Legislation: | Children and Community Services Act 2004 (WA), s 45 |
Case References: | Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 PVS v Chief Executive Officer, Department for Child Protection (No 2) [2011] WASC 318 Stead v State Government Insurance Commission (1986) 161 CLR 141 Stone v Braun [2015] WASCA 103 Woolworths Ltd v The Commissioner of Police [2013] WASC 413 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SERVICES
First Respondent
JT
Second Respondent
GC
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T SCHWASS
File No : PC 389 of 2014
Catchwords:
Appeal - Appeal from magistrate decision to grant a protection order - Whether natural justice required magistrate to permit child's representative to cross-examine witnesses - Turns on own facts
Legislation:
Children and Community Services Act 2004 (WA), s 45
Result:
Appeal upheld
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Mr S A Walker
First Respondent : Ms C J Thatcher
Second Respondent : No appearance
Third Respondent : In person
Solicitors:
Appellant : Rajesh Saharan
First Respondent : State Solicitor for Western Australia
Second Respondent : No appearance
Third Respondent : In person
Case(s) referred to in judgment(s):
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
PVS v Chief Executive Officer, Department for Child Protection (No 2) [2011] WASC 318
Stead v State Government Insurance Commission (1986) 161 CLR 141
Stone v Braun [2015] WASCA 103
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
- BEECH J:
Introduction
1 The appellant, AC, is the child of the second respondent, her mother (JT), and the third respondent, her father (GC). On 27 July 2015, the magistrate made a protection order in respect of AC until she reaches 18 years of age. The protection order stated that the magistrate found AC to be in need of protection under Part 4 of the Children and Community Services Act 2004 (WA) (the CCS Act) and that he was satisfied that long-term arrangements should be made for the wellbeing of the child.
2 Through the child's representative, the appellant has appealed against the making of that order.
3 Grounds 1 and 2 of the appeal complain that a miscarriage of justice occurred through the magistrate's error of law in declining to permit a trial to take place in circumstances where the child representative did not consent to any protection order, and where the child's representative said that he wished to test the evidence in the course of a trial. The first respondent (the CEO) concedes that ground 1 should succeed and that, subject to the CEO's application to adduce additional evidence, there should be a retrial.
4 At the hearing of the appeal on 7 December 2015, I upheld the appeal and ordered a retrial. These are my reasons for doing so.
Background
5 The background to the application and the material filed in support of it are set out accurately in the appellant's submissions. I do not repeat all that detail. The following is a broad summary of it.
6 By application filed on 19 August 2014, the CEO applied for a protection order. The application alleged that AC had suffered, or was likely to suffer, harm as a result of emotional abuse, physical abuse or neglect and that her parents had not protected, or were unlikely or unable to protect, her from harm or further harm of that kind. It sought a protection order for a period of one year.
7 An interim protection order was made on 18 September 2014.
8 On 1 April 2015, the CEO filed a further application that although not expressed as such, was, in substance, in substitute for the application of 19 August 2014. The further application relied on the additional ground that the child had suffered or was likely to suffer harm as a result of her parents being unable to provide or arrange the provision of adequate care for her. The application sought a protection order until 18.
9 The CEO filed a number of affidavits in support of the application. In broad summary, the CEO contended that AC was likely to suffer harm due to the deterioration of the mental state of JT, and her unwillingness to undergo appropriate and necessary treatment.
The hearing
10 When the matter was called for hearing before the magistrate, there was no appearance by or on behalf of JT. GC appeared in person. Counsel appeared as child's representative for the appellant. The CEO was also represented at the hearing.
11 Prior to this hearing, the magistrate had directed that the child's representative represent the child on the basis of her best interests. When the magistrate asked whether the child's representative supported or opposed the application, the child's representative said that he had not formed a view where the child's best interests lay, on the basis of the filed materials, and wanted to test the evidence. The magistrate expressed dissatisfaction that that was the child representative's position.
12 Pressed further by the magistrate, the child's representative stated that he did not support the order proposed and wanted to have the evidence called so that it could be tested.1 The magistrate responded, 'well that's not going to happen'.2
13 The magistrate spoke with GC and with counsel for the CEO to ascertain their positions on the application. GC did not oppose the application. The magistrate then concluded as follows:
Notwithstanding the child's representative wanting the evidence to be tested, given that there is absolutely no evidence to contradict the final position that the psychiatrists have come to, I am well satisfied that [AC] comes within the definitions of a child in need of protection and that it's incumbent on the court to do the right thing by her. It's clear that long term arrangements need to be made.
The medical evidence is clear and there is nothing to contradict it. The unfortunate aspect of the mother's mental illness is that she doesn't recognise she has a mental illness and the tragedy of all this for [AC] is of course that when her mother is well she's a perfectly fine mother. But she of course often is not well, doesn't recognise she has a mental illness and doesn't seek the necessary treatment and it's only when she becomes an involuntary patient that she gets treatment that she clearly needs.
So I'm satisfied under s 58 of the Act that long term arrangements should be made for [AC] and have no hesitation given that the father [GC] who knows the situation as well as anybody does from a long term perspective is in support of the application.3
Grounds of appeal
14 The child representative advances three grounds of appeal on behalf of AC. Grounds 1 and 2 are, in substance, that there was a miscarriage of justice arising from the magistrate's error of law in declining to permit a trial to take place. Ground 3 alleges in substance that the magistrate erred in law because the evidence at its highest was not capable of supporting a finding that a protection order until 18 was required.
15 A protection order made under s 45 of the CCS Act may be appealed under s 41 and s 42 of the Children's Court of Western Australia Act2004 (WA). Such an appeal is treated as an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). As a consequence, leave to appeal is required, which the court must not grant unless a ground has a reasonable prospect of success.
The CCS Act
16 Section 6 of the CCS Act sets out the objects of the Act. They are:
...
(a) to promote the wellbeing of children, other individuals, families and communities; and
(b) to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c) to encourage and support parents, families and communities in carrying out that role; and
(d) to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e) to protect children from exploitation in employment.
17 Section 7 provides that when performing a function or exercising a power under the Act in relation to a child the court must regard the best interests of the child as the paramount consideration. Section 8 sets out a non-exhaustive list of matters that must be taken into account in determining what is in a child's best interests and includes, in paragraph (a) 'the need to protect the child from harm' and, in paragraph (b) 'the capacity of the child's parents to protect the child from harm'.
18 The power of the Children's Court to make a protection order appears in s 45. That section provides:
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
(a) make the protection order sought in respect of the child; or
(b) make another protection order in respect of the child.
19 Section 46 provides for the 'no order principle'. That section provides:
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.
20 A child is 'in need of protection' if any of the four factual situations referred to in s 28(2) is established. Section 28(2) provides:
(2) For the purposes of this Part a child is in need of protection if -
(a) the child has been abandoned by his or her parents and, after reasonable inquiries -
(i) the parents cannot be found; and
(ii) no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
or
(b) the child's parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i) physical abuse;
(ii) sexual abuse;
(iii) emotional abuse;
(iv) psychological abuse;
(v) 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; or
(d) the child has suffered, or is likely to suffer, harm as a result of -
(i) the child's parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child's parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
21 When the court exercises its jurisdiction under s 20(1)(a) of the Children's Court of Western Australia Act 1988 (WA), its practice and procedure is governed by the Magistrates Court (Civil Proceedings) Act 2004 (WA) and rules of court under that Act.4
22 By s 13 of the Magistrates Court (Civil Proceedings) Act, in dealing with cases the court is to ensure they are dealt with justly, which includes ensuring that they are dealt with efficiently economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
23 By s 145 of the CCS Act, protection proceedings are to be conducted with as little formality and legal technicality as the circumstances permit. Further, the proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceeding on the child and the child's family. The court is not bound by the rules of evidence. The standard of proof is proof on the balance of probabilities. However, given the seriousness of a finding that a child is in need of protection, the evidence needs to be of a relatively high degree of cogency and persuasive power.5
24 Section 7 of the CCS Act requires the court to regard the best interests of the child as the paramount consideration.
25 In Mijatovic v Legal Practitioners Complaints Committee,6 Martin CJ said:
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 - 504, (cited with approval in SZBEL).
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
26 In my view, the profoundly serious consequences for both the child and the parents of the making of a protection order weigh heavily in the questions of whether the rules of natural justice apply, and what natural justice requires in the circumstances of a case. The fact that the application is determined by a court tends strongly in favour of the application of the rules of natural justice. Other relevant circumstances included the largely unexplained absence of the mother, JT, and the relatively recent substitution of an application for a protection order for one year with an application for an order until AC turned 18.
27 Nothing in the statutory framework applicable to the proceedings expressly or by necessary implication excluded the requirements of procedural fairness. I am satisfied that the magistrate was obliged to afford procedural fairness to all parties, including the child's representative.
28 It can, I think, fairly be said that the position articulated by the child's representative was less helpful and less precise than it might have been. It would have been preferable for the child representative's concerns and intended approach to be articulated with greater specificity.
29 Nevertheless, I am satisfied, consistent with the CEO's concession, that in the circumstances of the case, procedural fairness required that the child's representative be permitted to cross-examine the witnesses relied upon by the Department. The failure of the magistrate to require the Department to put its case properly by calling the witnesses it relied upon, so as to allow the child's representative to test the evidence, meant that the child's representative could not properly fulfil his role.
30 GC submits that the appeal should be dismissed. Many of his submissions assert the correctness of the conclusion reached by the magistrate. Because, in my view, the trial process miscarried, this court is not in a position to reach any concluded views as to the correctness or otherwise of the magistrate's ultimate conclusion. The question of whether a protection order should be made and, if so, its duration, should be determined after a hearing at which the child's representative is permitted to cross-examine the witnesses relied on by the Department.
31 Insofar as GC submits that, in the circumstances, the refusal by the magistrate to permit the child representative to cross-examine the Department's witnesses was justified, for the reasons I have given, I do not accept that submission.
Should there be an order for retrial?
32 The CEO conceded in written submissions that the result of that error on the part of the magistrate must be a retrial, on the basis that it cannot be said that the protection order (until 18) made by the magistrate was the only available outcome that could have been reached had natural justice been afforded.
33 However, the CEO applied to adduce additional evidence in relation to the question of whether there should be a retrial. The additional evidence is constituted by an email, dated 23 November 2015, sent by JT to the court.
34 The CEO submits that the email demonstrates that JT may not return to Perth. Further, the CEO submits that if JT does not return to Perth, she will be unable to care for AC so that the only appropriate outcome would be that AC remain in the care of the CEO until she is 18.
35 There is authority to the effect that where a breach of the rules of natural justice has been shown, relief will nonetheless be refused if it is established either that a properly conducted hearing could not possibly have produced a different result or that a proper hearing could not possibly lead to a different result at a new hearing.7 I proceed on the basis that it will be enough for the CEO to demonstrate that a properly conducted hearing could not possibly lead to a different result at the new hearing.
36 In my view, the proposed fresh evidence falls well short of demonstrating that. As is effectively accepted by the CEO, the email referred to goes no further than to suggest that JT may not return. The existence of that possibility does not conclusively and inevitably determine the result of a retrial. Moreover, at a retrial, it will be open to JT to give evidence to explain her position in that respect.
37 A contention that a retrial must be refused notwithstanding a breach of the requirements of natural justice must meet a high threshold: that a properly conducted hearing could not possibly lead to a different a result. The additional evidence relied on by the CEO falls well short of meeting that threshold. For these reasons, I refused the application for leave to adduce additional evidence.
38 For these reasons, in my view, the breach of the requirements of natural justice means that there must be an order for retrial.
Ground 3
39 In the circumstances, it is neither necessary nor appropriate to deal with ground 3.
Cross-appeal
40 Grounds 1 and 4 of the cross-appeal are substantially the same as grounds 1 and 2 of the appeal. For the reasons already given, grounds 1 and 4 of the cross-appeal should be upheld. It is not appropriate to deal with the other grounds of the cross-appeal.
Conclusion
41 For these reasons, I made orders to the following effect:
(1) the first respondent's application for leave to adduce additional evidence be refused;
(2) there be leave to appeal on grounds 1 and 2;
(3) the appeal be upheld on grounds 1 and 2;
(4) there be leave to appeal on cross-appeal grounds 1 and 4, and the appeal be upheld on those grounds; and
(5) there be a retrial before a different magistrate.
1 ts 29 - 30.
2 ts 30.
3 ts 31.
4Children's Court of Western Australia Act (2004) (WA), s 37 (2)(b).
5PVS v Chief Executive Officer, Department for Child Protection (No 2) [2011] WASC 318 [55] (Murray J).
6Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [3] - [4].
7Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 - 147 (Mason, Wilson, Brennan, Deane, Dawson JJ); Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, 165 (Lindgren J); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy J) and cases there cited; Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [129] (Edelman J); Stone v Braun [2015] WASCA 103 [79] (Beech J, Buss JA and Mazza JA agreeing).
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