BR v Chief Executive Officer for the Department of Communities
[2022] WASC 92
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BR -v- CHIEF EXECUTIVE OFFICER FOR THE DEPARTMENT OF COMMUNITIES [2022] WASC 92
CORAM: MCGRATH J
HEARD: 15 SEPTEMBER 2021
DELIVERED : 17 MARCH 2022
PUBLISHED : 17 MARCH 2022
FILE NO/S: SJA 1033 of 2021
BETWEEN: BR
Appellant
AND
CHIEF EXECUTIVE OFFICER FOR THE DEPARTMENT OF COMMUNITIES
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE W HUGHES
File Number : PC 484 of 2019, PC 509 of 2019
Catchwords:
Child protection applications - Appeal against decision not to make costs order - Interpretation of Children and Community Services Act 2004 (WA) and Magistrates Court (Civil Proceedings) Act 2004 (WA)
Legislation:
Children and Community Services Act 2004 (WA), s 155
Children's Court of Western Australia Act 1988 (WA), s 37
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Result:
Leave to appeal not granted on grounds 1, 2, 3 and 4
Appeal is dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr W G Spyker |
| Respondent | : | Ms C J Thatcher SC |
Solicitors:
| Appellant | : | Spyker Legal |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Alcan (NT) Alumna Pty Ltd v Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905
Department of Communities v CML [2021] WACC 2
Edmunds v Starling [2013] WASCA 225
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Harding v Coburn [1976] NZLR 577
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mohammadi v Bethune [2018] WASCA 98
Morris v Chapman (Unreported, Supreme Court of Western Australia Appeal No 4424 of 1986)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Her Honour Chief Judge Kennedy; Ex Parte West Australian Newspapers Ltd [2006] WASCA 172
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294
MCGRATH J:
Introduction
At first instance, the appellant was a respondent to applications by the Chief Executive Officer (CEO) for the Department of Communities for protection orders under the Children and Community Services Act 2004 (WA) (CCS Act). The applications were discontinued by the CEO and therefore, the merits of the applications were not determined. The Children's Court granted the CEO leave to withdraw the applications. The appellant then sought an order that the CEO pay his costs of the applications. The learned Magistrate dismissed that application. The appellant now appeals that order.
The primary issue to be determined in this appeal is the proper construction of s 155 of the CCS Act, s 37 of the Children's Court of Western Australia Act1988 (WA) (CC Act) and s 25 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act). The appellant contends that in respect of protection applications under the CCS Act 'costs follow the event'[1] and therefore, the learned Magistrate erred in refusing to make a cost order in favour of the appellant in circumstances where the CEO's application was dismissed or withdrawn. The respondent contends that there are public interest reasons why protection proceedings under the CCS Act are ordinarily no costs proceedings. The respondent contends that it is not the case that costs follow the event. Rather, the judicial officer has discretion to make an order for costs, only if the proceedings are vexatious or frivolous under s 155 of the CCS Act.
[1] Appellant’s written outline of submissions filed 13 August 2021 [1].
For the following reasons, leave to appeal is refused and the appeal is dismissed.
Proceedings in the Children's Court
Procedural history
The proceedings below in the Children's Court involve two children, LMR and CR, aged 17 years and 15 years respectively. The appellant is the father of LMR and CR. In 2012, the appellant and the children's mother separated. Upon separation of their parents, LMR and CR lived with the appellant.
The history of the protection proceedings was outlined in detail by the learned Magistrate in her reasons for decision in respect of the appellant's cost application.[2] I will provide a short summary of the most salient events in the proceedings.
[2] Department of Communities v CML [2021] WACC 2 [40] ‑ [66].
In September 2019, the CEO applied for, and was issued with, a warrant to take LMR and CR into provisional care pursuant to s 35 of the CCS Act. The CEO made applications for care and protection orders (time limited) for two years in respect of both LMR and CR. Both LMR and CR were made subject to provisional protection and care, and placed with their mother, pursuant to s 37 of the CCS Act.
On 8 October 2019, the Court ordered that CR remain in provisional protection and care pursuant to s 133(2)(b) of the CCS Act. On 6 January 2020, the court ordered that LMR remain in provisional protection and care pursuant to s 133(2)(b) of the CCS Act.
On 4 April 2020, the appellant applied for an interim order revoking those interim protection orders in respect of LMR and CR and in the alternative, sought unsupervised time with LMR.
On 30 April 2020, the Children's Court ordered an expert report, pursuant to s 139 of the CCS Act.[3] The appellant's interim application was adjourned pending the Children's Court's receipt of the expert report. On 17 September 2020, the expert provided the report.[4] The conclusion of the expert was that both LMR and CR should remain in the care of the CEO pursuant to the protection order.[5]
[3] Department of Communities v CML [2021] WACC 2 [60].
[4] Department of Communities v CML [2021] WACC 2 [61].
[5] Department of Communities v CML [2021] WACC 2 [62].
On 8 February 2021, the CEO applied to withdraw the applications under the CCS Act in respect of both LMR and CR. Magistrate Horrigan granted the CEO leave to withdraw the protection applications.[6] The Children's Court also ordered that the interim orders made on 8 October 2019 and 6 January 2020 respectively, requiring that CR and LMR remain in provisional protection and care, be revoked.
[6] ts 10 ‑ 11 (08/02/2021).
Counsel for the appellant sought costs. Her Honour Magistrate Horrigan ordered that the appellant file an application for costs and written submissions.[7]
[7] ts 10 (08/02/2021).
On 25 February 2021, the appellant made an application that the respondent pay his costs in the sum of $30,407.25 or in the alternative to be assessed if not agreed. On 12 April 2021, the application for costs was heard before her Honour Magistrate Hughes.
On 6 May 2021, the learned Magistrate dismissed the application for costs.[8] Her Honour did so after considering the proper construction of the applicable legislative provisions.[9]
Reasons of the learned Magistrate
[8] Department of Communities v CML [2021] WACC 2.
[9] Department of Communities v CML [2021] WACC [32] ‑ [38].
The learned Magistrate stated that s 37(2) of the CC Act expressly provided that the MCCP Act and the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCP Rules) are subject to the CCS Act.[10] Accordingly, her Honour held that s 25 of the MCCP Act, which provides that a successful party is entitled to the whole of its costs in a case to be paid by the unsuccessful party unless there is good reason not to make such an order is subject to the provisions of the CCS Act. The learned Magistrate noted that s 155 of the CCS Act provides the Court with the express power to grant costs in protection and care proceedings. Her Honour concluded that under the terms of s 155 the Court may, if it is satisfied that the proceedings are frivolous or vexatious, make any order as to costs that it considers appropriate.[11] Her Honour held that the proceedings commenced by the CEO were not frivolous or vexatious and, accordingly, dismissed the appellant's application for costs.
[10] Department of Communities v CML [2021] WACC [33] ‑ [34].
[11] Department of Communities v CML [2021] WACC 2 [38].
Grounds of Appeal
The appellant relies upon the following four grounds of appeal.[12]
1.The learned Magistrate erred in law in determining that s 25 of the Magistrates Court (Civil Proceedings) Act and rule 29 of the Magistrates Court (Civil Proceedings) Rules do not apply in relation to protection and care proceedings brought before the Children's Court pursuant to the Children and Community Services Act.
2.The learned Magistrate erred in law in determining that the Children's Court's power to grant costs was limited to the circumstances set out in s 155 of the CCS Act.
3.The learned Magistrate erred in law and in fact when making findings of fact based upon reports and affidavits which had not been admitted into evidence and/or were untested at trial.
4.The learned Magistrate erred in law in declining to take into account the determination and findings of his Honour Magistrate Hogan in A v R [2020] WACC (24 March 2020 in RO 316 of 2019) when such determination and findings were relevant and ought to have been taken into account.
[12] Notice of Appeal filed 3 June 2021.
Leave to appeal
A Children's Court magistrate's decision made under s 155 of the CCS Act may be appealed to the Supreme Court pursuant to ss 41 and 42 of the CC Act. Such an appeal is treated as an appeal under Pt 2 of the Criminal Appeals Act 2004 (WA). Therefore, leave to appeal is required.[13]
[13] YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294 [39].
The Supreme Court must not grant leave to appeal unless a ground has a reasonable prospect of success, meaning that the ground must have a real, rational and logical prospect of succeeding, which is more than arguable.[14]
[14] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
A magistrate's decision on the application for costs involves the exercise of a discretion. Before an appellate court may reverse the decision found upon the exercise of a judicial discretion, it must be satisfied that the discretion miscarried.[15]
[15] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505; Re Her Honour Chief Judge Kennedy; Ex Parte West Australian Newspapers Ltd [2006] WASCA 172 [33].
Application to adduce additional evidence on the appeal
The appellant sought to rely upon additional evidence in support of the appeal. In support of that application, the appellant relies upon his affidavit affirmed on 13 August 2021 and two annexures thereto. The first annexure is the reasons for decision of his Honour Magistrate Mackey, dated 27 July 2021, in the Family Court of Western Australia, concerning an application for parenting orders in respect of LMR and CR.[16] The second annexure is a copy of the sealed orders made by his Honour Magistrate Mackey, in the Family Court on 27 July 2021, that the two children live with the appellant and spend time with the mother.[17]
[16] Affidavit of BR affirmed 13 August 2021, Annexure BR 2, transcript of reasons for decision of Magistrate Mackey delivered 27 July 2021.
[17] Affidavit of BR affirmed 13 August 2021, Annexure BR 2, transcript of reasons for decision of Magistrate Mackey delivered 27 July 2021.
His Honour Magistrate Mackey determined that no order should be made in respect of parental responsibility. Rather, his Honour stated that the appellant and the children's mother should have shared parental responsibility.[18] His Honour expressly found that the appellant should not have sole responsibility. In making that determination, Magistrate Mackey considered the views of the children. CR expressed the view that he should reside with the appellant but spend time with his mother. LMR expressed the view that she should reside with the appellant and communicate with her mother when she chooses to do so.
[18] Affidavit of BR affirmed 13 August 2021, Annexure BR 2, transcript of reasons for decision of Magistrate Mackey delivered 27 July 2021, 10.
His Honour Magistrate Mackey stated that given the application was an interlocutory proceeding, there was little opportunity to test the evidence and that 'the fact finding exercise is largely redundant insofar as it relates to issues that are in dispute.'[19]
[19] Affidavit of BR affirmed 13 August 2021, Annexure BR 2, transcript of reasons for decision of Magistrate Mackey delivered 27 July 2021, 8 ‑ 9.
The appellant contends that the proposed additional evidence is relevant 'to the overall exercise of discretion, in that it demonstrates that the status quo as it was prior to the Department's original intervention (to remove the children from the appellant's care) has now been returned, thus rendering the care and protection proceedings nugatory.'[20]
[20] Appellant's written outline of submissions filed 13 August 2021 [40].
The appellant's application to adduce the proposed evidence is misconceived. The reasons for decision of his Honour Magistrate Mackey are not relevant in respect of the application for costs in the separate care and protection proceedings in the Children's Court for the following reasons. First, the two proceedings are separate and distinct proceedings. The statutory considerations for a parenting order in the Family Court differ significantly from the statutory considerations in protection proceedings in the Children's Court. Second, his Honour Magistrate Mackey gave significant weight to the views of the children. His Honour expressly stated that he was not undertaking an analysis of the evidence with a view to making factual findings. To the contrary, his Honour observed that the factual finding exercise was largely redundant. Third, his Honour Magistrate Mackey determined the parental responsibility application on 27 July 2021. The protection proceedings had been withdrawn months before on 8 February 2021. There was nothing to suggest that the orders made by his Honour Magistrate Mackey, in separate proceedings in the Family Court, could have any bearing on the costs application determined by her Honour Magistrate Hughes.
There is no significant possibility that the discretion to order costs would have been exercised differently if the reasons for decision of his Honour Magistrate Mackey were received in evidence. Therefore, the application to adduce the additional evidence is dismissed.
Assessment of Grounds of Appeal
Grounds 1 and 2
Ground 1 pleads that the learned Magistrate erred in law in determining that s 25 of the MCCP Act and r 29 of the MCCP Rules do not apply in relation to protection and care proceedings commenced in the Children's Court, pursuant to the CCS Act. The appellant contends that s 25 of the MCCP Act and r 29 of the MCCP Rules enable the appellant to apply for and be awarded costs.
Ground 2 pleads that the learned Magistrate erred in law in determining that the Children's Court's power to grant costs was limited to the circumstances set out in s 155 of the CCS Act.
Both grounds may be considered together.
Statutory framework
The resolution of the appeal requires a determination of the proper construction of the relevant provisions of the CC Act, the CCS Act and the MCCP Act.
Section 20(1)(a) of the CC Act provides that the Children's Court has exclusive jurisdiction to hear and determine all applications made with respect to a child under the CCS Act. The CEO has the exclusive right to make an application for a protection order.[21]
[21] Children and Community Services Act 2004 (WA), s 44(1).
The practice and procedure of the Children's Court is set out in s 37 of the CC Act which relevantly provides.
(1)Subject to this Act and to the rules of court, the President is responsible for the administration of the Court, the disposition of the business of the Court and for its practice and procedure.
(2)Subject to this Act and the Children and Community Services Act 2004 and any other Act that confers jurisdiction on the Court, the practice and procedure of the Court shall be governed by rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court -
(a)the practice and procedure of the Court when it is exercising the jurisdiction conferred by section 19(1) shall be that provided by the Criminal Procedure Act 2004; and
(b)the practice and procedure of the Court when it is exercising the jurisdiction conferred by section 20 shall be that provided by the Magistrates Court (Civil Proceedings) Act 2004 and the rules of court made under that Act by the Magistrates Court.
Section 25 of the MCCP Act provides that a successful party is entitled to an order that the whole of its costs be paid by the unsuccessful party unless the court considers that there is good reason not to make such an order. Section 25 of the MCCP Act relevantly provides:
(1)The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
(2)A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order or subsection (5) applies.
(3)An order may be made under subsection (1) in a case even if the case is outside the Court's jurisdiction.
(4)An order may be made under subsection (1) at any stage of the proceedings in a case.
(5)In a case where -
(a)the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and
(b)the claimant did not elect to have the claim dealt with under the minor cases procedure or, under section 28(3), the court ordered that the case be dealt with under the general procedure,
the Court may only make an order under subsection (1) in favour of a successful party if the order would be permitted by section 31 were the case being dealt with under the minor cases procedure.
(6)If in a case referred to in subsection (5) judgment is given under section 18 as a result of an application by the successful party, any order made under this section in favour of the party may, in addition to relating to any allowable costs referred to in section 31, include the party's costs of the application under section 18.
(7)The amount of any costs to be paid is to be determined by the Court unless the parties concerned agree on the amount.
(8)The amount of any costs to be paid in respect of work done by a legal practitioner in conducting any proceedings in the case is to be determined under the applicable costs determination.
Section 155 of the CCS Act provides:
(1)At any time in the course of protection proceedings the Court may, if it is satisfied that the proceedings are frivolous or vexatious -
(a)dismiss the proceedings; and
(b)make any order as to costs that it considers appropriate; and
(c)on the application of a party, order that the person who instituted the proceedings cannot, without the leave of the Court, institute protection proceedings of the kind or kinds specified in the order.
(2)An order made under subsection (1)(c) has effect despite any other provision of this Part.
(3)The Court may vary or discharge an order made under subsection (1)(c).
Principles of statutory construction
The rules of statutory construction require primary attention to be directed to the text of the relevant provisions,[22] having regard to the language of the statutory instrument viewed as a whole, considered in context.[23] The language of the statute must be interpreted having regard to context and the legislative purpose.
[22] Alcan (NT) Alumna Pty Ltd v Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[23] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
In Alcan (NT) Alumna Pty Ltd v Commissioner of Northern Territory the High Court stated that:[24]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[24] Alcan (NT) Alumna Pty Ltd v Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
The specific provisions of the legislation that arise for interpretation must be construed consistently with the language and purpose of all the provisions of the statute.[25]
Consideration of grounds 1 & 2
[25] Mohammadi v Bethune [2018] WASCA 98 [32].
The Children's Court's power to award costs is conferred solely by statute.[26] Section 37 (read with s 20) of the CC Act provides that subject to the CC Act and the CCS Act, the practice and procedure of the Children's Court when it is exercising jurisdiction to hear and determine an application with respect to a child under the CCS Act, shall be that provided by the MCCP Act and the MCCP Rules under that Act.
[26] Edmunds v Starling [2013] WASCA 225 [10].
However, that is so 'subject to this Act' (that is, the CC Act) and 'the CCS Act.'
The phrase 'subject to' in statutes is a 'standard way of making clear which provision is to govern in the event of conflict'[27] and further, 'if there is collision, the phrase shows what is to prevail.'[28]
[27] Harding v Coburn [1976] NZLR 577, 582.
[28] C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, 911.
Section 155 of the CCS Act deals expressly with the award of costs. The section provides that in the course of protection proceedings the court may, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings and make any order as to costs that it considers appropriate.
In my view, because s 155 deals expressly with the question of costs, s 37 of the CC Act makes clear that in relation to the question of costs it is s 155 which governs that aspect of the court's practice and procedure, rather than the MCCP Act and MCCP Rules made thereunder.
Furthermore, the primary concern of the protection and care proceedings is ensuring the best interests of the child by providing necessary protection and care. Section 25 of the MCCP Act provides that a 'successful party' is entitled to its costs. The proceedings are not properly characterised as being proceedings merely between an applicant and respondent with one party being 'successful' and the other not. Rather, the court may make a range of orders in the exercise of its discretion under the CCS Act. In my view, this lends further support to the conclusion that the costs procedures in the MCCP Act were not intended to apply to care and protection proceedings.
On its proper construction, s 155 of the CCS Act only permits an award of costs to a party if the Children's Court is satisfied that the protection proceedings are frivolous or vexatious and should be dismissed. If those pre-conditions for the Children's Court to order costs have been satisfied, then the court may make an order as to costs 'that it considers appropriate'. Section 155 does not require the court to only award costs if those pre-conditions have been satisfied. Rather, the court has an unfettered discretion to make any order as to costs 'that it considers appropriate'.
Further, the statutory context, namely the nature of the protection and care proceedings, strongly supports this interpretation of s 155 of the CCS Act, for the following reasons.
First, the CEO performs a significant public function to protect and safeguard a child who has suffered or is likely to suffer harm. In the event that the CEO receives information that raises concerns about a child's wellbeing, the CCS Act imposes a duty on the CEO to inquire and commence intervention action, if reasonably necessary. In the event that the CEO is so satisfied, the CEO must take one or more of the statutory intervention actions, being the making of an application for a warrant (provisional protection and care), taking the child into provisional protection and care, or making a protection application.[29] The CEO must make decisions promptly, having regard to the age, characteristics, circumstances and needs of the child.[30] The performance of this statutory function should not be impeded by the risk of an adverse costs order if the CEO reasonably brings proceedings but is unsuccessful. Viewed in that context, it is clear that the legislative purpose was to limit cost orders against the CEO to cases where proceedings were vexatious or frivolous.
[29] Children and Community Services Act 2004 (WA), s 32.
[30] Children and Community Services Act 2004 (WA), s 9(h).
Second, s 145 of the CCS Act provides that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit, and as expeditiously as possible, in order to minimise the effect of the proceedings on the child and the child's family, and as far as possible in a way that promotes cooperation and consensus. If the court were to have broad powers to award costs this would establish an adversarial approach to the proceedings. That is inconsistent with the objects and principles of the CCS Act and with the primary concern of the CCS Act, being the best interests of the child.
Finally, I observe that prior to the enactment of the CCS Act, applications for the care and protection of a child were made under the Child Welfare Act1947 (WA). In Morris v Chapman,[31] the Court held that costs could not be awarded in protection proceedings under the Child Welfare Act. The construction of s 155 which I prefer is consistent with the historical approach to costs in protection proceedings, albeit that it now permits an award of costs against the CEO in the narrow circumstances where the proceedings are vexatious or frivolous.
[31] Morris v Chapman (Unreported, Supreme Court of Western Australia Appeal No 4424 of 1986), 7 (Olney J).
Accordingly, grounds 1 and 2 are without merit and therefore leave to appeal is refused.
Ground 3
By ground 3, the appellant contends that the learned Magistrate erred in law and in fact when making findings of fact based upon reports and affidavits which had not been admitted into evidence and were not tested at trial.
The learned Magistrate, having determined that s 155 of the CCS Act exclusively gave the Children's Court the power to grant costs, necessarily considered whether the proceedings were vexatious or frivolous.
Contrary to the contention of the appellant, the learned Magistrate did not undertake a fact finding exercise. The learned Magistrate was not required to determine disputed facts in circumstances where the CEO determined not to proceed with the application. However, it was necessary for her Honour to review the facts and circumstances surrounding the commencement and withdrawal of the proceedings to adequately outline her reasoning process in determining the costs application.
The learned Magistrate outlined in detail the history of the proceedings particularising with clarity the concerns, raised by multiple sources, of the risk harm of to LMR and CR. Further, the learned Magistrate outlined the extent to which the Department properly investigated the multiple sources of those reports prior to commencing the proceedings. Her Honour considered the report of the separate children's representative, received in January 2020. Significantly, a court appointed expert stated that there remained genuine protection concerns for both LMR and CR including the risk of sexual abuse and emotional harm.[32] The learned Magistrate observed that as of 11 November 2020 the Department's protection concerns were properly held, for both LMR and CR, on the basis of reviews conducted by the Department. The concerns comprised the likelihood of emotional abuse to LMR and emotional harm to CR.[33] Her Honour stated that it was reasonable for the Department to continue with the proceedings in those circumstances.
[32] Department of Communities v CML [2021] WACC 2 [68].
[33] Department of Communities v CML [2021] WACC 2 [63].
Her Honour observed that on 22 September 2020, the protection applications were listed for a 10-day trial to commence on 6 April 2021. On 13 January 2021, the trial dates were vacated and on 8 February 2021, leave was granted to the CEO to withdraw the applications. Her Honour found that the period between the Children's Court receiving the court appointed expert's report in September 2020 and withdrawing the application in February 2021 was not unreasonable given the recommendations of the report.[34] No error has been demonstrated by her Honour's analysis in this respect.
[34] Department of Communities v CML [2021] WACC 2 [69].
The ground of appeal is without merit. The appellant appears to be asserting, in effect, that for the learned Magistrate to determine the merits of the application for costs, the learned Magistrate should have conducted a full hearing of the substantive proceedings, being the applications for the care and protection orders.
Her Honour considered the material filed in the substantive proceedings to determine the application for costs. Her Honour's consideration of the material filed was necessary only to assess whether the CEO's application was frivolous or vexatious. Having done so, her Honour determined that the protection and care proceedings were properly investigated and commenced and were not vexatious or frivolous. Leave is refused on ground 3.
Ground 4
By ground 4, the appellant contends that the learned Magistrate erred in law in declining to take into account the determination and the findings of his Honour Magistrate Hogan in respect of a restraining order application made by an officer of the Department against the appellant and the respondent, when such a determination and findings were relevant and ought to have been taken into account.
On 25 February 2020, his Honour Magistrate Hogan dismissed the application for a Family Violence Restraining Order (FVRO) against the appellant.
His Honour found that the officer of the Department had not proven that the appellant had committed family violence against LMR or CR and, further, that Department did not have reasonable grounds to apprehend that BR would commit family violence against LMR or CR. The learned Magistrate ordered that the relevant officer of the Department pay the appellant's costs of that application.
The learned Magistrate gave cogent reasons as to why the FVRO proceedings should not be taken into account in determining the application for costs in the protection proceedings.[35] Her Honour stated that the FVRO proceedings were dismissed due to the Department not leading sufficient evidence concerning family violence, in particular in respect of CR. The learned Magistrate stated that it was not the case that there was a finding by Magistrate Hogan that the evidence relied upon by the Department was false. Accordingly, there was no cause for the learned Magistrate to hold concerns regarding the evidence proposed to be relied upon by the CEO in the protection proceedings. Her Honour stated that the Court now had the benefit of the parenting capacity assessment with the protection concerns in respect of both CR and LMR identified. The learned Magistrate also observed that the test applied at the final hearing for a FVRO is different to an assessment of whether a child is in need of protection and care and what is in the best interests of the child.[36]
[35] Department of Communities v CML [2021] WACC 2 [72].
[36] Department of Communities v CML [2021] WACC 2 [72].
The ground is without merit. The application for a FVRO and the application by the respondent under the CCS Act are distinct proceedings. The application for the FVRO is an application under the Restraining Orders Act 1997 (WA).
The circumstances in which a child is in need of protection under the CCS Act are significantly broader than the test for family violence under the Restraining Orders Act. Section 28 of the CCS Act provides an extended definition of the circumstances in which a child is in need of protection. The circumstances include that a child is likely to suffer harm due to a failure by a child's parents to provide, arrange or allow the provision of adequate care for the child. In contrast, s 5A of the Restraining Orders Act provides that family violence is a reference to violence, or a threat of violence, by a person towards a family member or any behaviour that coerces or causes a family member to be fearful. Consequently, there may be grounds in a particular case to make a child the subject of a protection and care order but insufficient grounds to grant a FVRO.
In the present case, there was no error by the learned Magistrate in concluding that the CEO has a proper basis for making applications for the protection and care of LMR and CR. Subsequent to the determination of his Honour Magistrate Hogan dismissing the FVRO application on 25 February 2020, the CEO continued to hold protection concerns regarding LMR and CR and therefore made the protection applications under the CCS Act. On 17 September 2020, some seven months after his Honour Magistrate Hogan's decision, the report of the court appointed expert expressed the extent of her concerns for the care and protection of LMR and CR. The conclusion of the expert was that both LMR and CR should remain in the care of the Department.[37]
[37] Department of Communities v CML [2021] WACC 2 [62].
Ground 4 is without merit and therefore, leave is refused.
Conclusion
Accordingly, leave to appeal is refused on each ground of appeal. Therefore, the appeal is taken as dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
17 MARCH 2022
0
11
0