BF v Department of Child Protection
[2013] WASC 291
•7 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BF -v- DEPARTMENT OF CHILD PROTECTION [2013] WASC 291
CORAM: McKECHNIE J
HEARD: 30 JULY 2013
DELIVERED : 7 AUGUST 2013
FILE NO/S: SJA 1032 of 2013
BETWEEN: BF
First Appellant
KAP
Second AppellantAND
DEPARTMENT OF CHILD PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C CRAWFORD
File No :CC 3166 of 2008, CC 3167 of 2008, CC 3168 of 2008, CC 314 of 2009, CC 734 of 2012, CC 1402 of 2012
Catchwords:
Child protection - Findings of primary court - Need to show error - No new principles
Legislation:
Children and Community Services Act 2004 (WA)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent: Mr S B Watters
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent: Department for Child Protection
Case(s) referred to in judgment(s):
Asvar v Binning [2009] WASCA 219
CEO of the Department of Child Protection v BF [2013] WACC 2
McKECHNIE J:
The proceedings in the primary court
The female appellant, BF, is the mother of six children. The second appellant, KAP, is the father of one of those children, D.
The CEO of the Department of Child Protection applied for protection orders in the Children's Court. The matter was heard over 10 days in August 2012. The appellants were unrepresented. The maternal father and mother were also parties. The maternal father, who had some court experience as a former police officer, though a lay person, effectively cross‑examined witnesses, on behalf of all respondents. Cross‑examination of the Department's witnesses was extensive.
KAP was not able to comment on matters before he and BF formed their relationship but was able to give evidence of events after that time and of his own position in respect of the future care of the children.
BF elected not to give evidence. The magistrate took particular care to ensure that BF understood her rights, giving BF further time to consider her position. BF called a witness who had provided respite for three of the children. She gave evidence of their appearance and demeanour before and after apprehension when their behaviour was slightly worse.
The maternal father gave evidence as did BF's mother. KAP called his mother to give evidence and gave evidence himself.
The magistrate delivered comprehensive reasons dated 25 February 2013: CEO of the Department of Child Protection v BF [2013] WACC 2. She made care and protection orders until 18 in respect of all the children.
The appeal
The appellants seek leave to appeal on three grounds.
On 17 May 2013 Hall J ordered that the application for leave to appeal be heard at the same time as the appeal and made other programming orders, including an order for particulars of ground 1 by reference to the transcript and an affidavit setting out the fresh evidence referred to explaining why this evidence was not called before the magistrate.
On 30 May 2013 the first appellant, BF, filed an affidavit and on 10 July 2013 the second appellant, KAP, filed an affidavit.
An appeal hearing is not a retrial of matters that were before the primary court. As a first step, an appellant must demonstrate that the primary court fell into error in a manner specified by a ground of appeal: Asvar v Binning [2009] WASCA 219 [37].
Simple repetition of argument which failed to persuade the primary court does not in general indicate error by that court.
The magistrate's reasons in this case, as I have said, were thorough and comprehensive. They canvassed in detail the evidence brought by all parties and the submissions made. The magistrate made findings which were open to her to make upon that evidence. She was conscious of the legislative framework which guides the making of protection orders and the principles enunciated by this court to apply in respect of the burden of proof and the degree of satisfaction necessary.
The distress of the appellants is understandable. As Mr Watters for the respondent said, their love for the children is not in question.
KAP's position is poignant. He was not a party to the events which preceded his relationship and has lost access to his child.
However, the magistrate was acutely aware of this. She sets out her reasons why it was in the best interests of D that a care and protection order until 18 be made notwithstanding that KAP provided some stability [262]. The evidence supported that conclusion.
With these principles in mind I turn to the grounds of appeal.
Ground 1 - The magistrate took into account evidence he or she should not have such as hearsay evidence
The Children and Community Services Act 2004 (WA) s 146 provides:
Court not bound by rules of evidence
(1)In this section -
Representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
(2)In protection proceedings the Court is not bound by the rules of evidence, but may inform itself on any matter in any manner it considers appropriate.
(3)Without limiting subsection (2), evidence of a representation about a matter that is relevant to the protection proceedings is admissible despite the rule against hearsay.
(4)The Court may give such weight as it thinks fit to evidence admitted under subsection (3).
An appeal cannot then succeed simply on the basis that the magistrate took into account hearsay evidence.
The only specific reference by the appellant BF to hearsay evidence is in respect to [87] of the judgment:
There was evidence of behaviours by [J] consistent with the previous use of physical punishment, or violence directed to the child prior to apprehension, which is likely to have caused psychological distress, for example:
•When the foster carer was reprimanding [J] for throwing slippers around the house on 7 May 2012, whilst holding a slipper up and asking the child 'what do these do?', [J] was reported to have cried out 'No, No, No' and put his hands up to cover his face.
•At a birthday party for [L] and [T] at an indoor play centre on 5 May 2012, [J] accidently knocked over a cup of water. His reaction was reported as follows:
[J] instantly got up and froze in fear like he was about to be severely reprimanded for spilling the water. Maria told him that it was OK and was just an accident and she gave him plenty of hugs to help him relax again, but it took [J] a couple of minutes to calm down and join in with the others again.
The magistrate was entitled to take account of this evidence and to attribute to it such weight as she considered appropriate. There are no reasonable prospects of success on this ground.
Leave to appeal on ground 1 is refused.
Ground 2 - Fresh evidence has become available
Hall J ordered the filing of affidavits in the expectation that they would constitute fresh or new evidence. Instead the affidavits are a mixture of argument and evidence, all of which was before the magistrate.
The affidavit of BF
In the main BF's affidavit traverses by way of argument matters which were before the magistrate, some of which were indeed put to the magistrate at the hearing. It contains nothing in relation to fresh or new evidence.
The affidavit of KAP
Likewise, it contains matters of argument and submission but does not contain any fresh or new evidence.
As no fresh evidence has been presented to the court, leave to appeal is refused in respect of ground 2.
Ground 3 - Magistrate didn't even consider other orders such as supervision orders
Contrary to this ground, the magistrate gave very careful consideration as to whether any order should be made in respect of each child and, if so, what order bearing in mind the best interests of the child as the paramount consideration: CEO of the Department of Child Protection v BF [212] ‑ [263]. There is no substance in this ground and no reasonable prospects of success. Leave to appeal is refused.
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