Chief Executive Officer, Department for Communities v BFH

[2017] WASC 324

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITIES -v- BFH [2017] WASC 324

CORAM:   HALL J

HEARD:   7 NOVEMBER 2017

DELIVERED          :   7 NOVEMBER 2017

PUBLISHED           :  14 NOVEMBER 2017

FILE NO/S:   SJA 1060 of 2017

BETWEEN:   CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITIES

Appellant

AND

BFH
First Respondent

ABT
Second Respondent

KM
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE HOGAN

File No  :CC 181 of 2017

Catchwords:

Protection and care of a child - Appeal from decision to dismiss a protection application - Application for a stay or suspension of the dismissal order pending determination of the appeal - Effect of stay to maintain child in provisional protection - Relevant considerations in regard to discretion to grant a stay

Legislation:

Children and Community Services Act 2004 (WA), s 7, s 8, s 37, s 38, s 147
Children's Court Act 1988 (WA), s 42
Criminal Appeals Act 2004 (WA), s 12

Result:

Stay granted

Category:    B

Representation:

Counsel:

Appellant:     Ms C Taggart

First Respondent           :     No appearance

Second Respondent      :     Ms A Johns-Kula

Third Respondent          :     In person

Solicitors:

Appellant:     State Solicitor for Western Australia

First Respondent           :     No appearance

Second Respondent      :     Kimberley Community Legal Services Inc

Third Respondent          :     In person

Case(s) referred to in judgment(s):

Anderson v Pankhurst [2012] WASC 287

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

PVS v Chief Executive Officer, Department for Child Protection [2010] WASCA 168

1. HALL J: The appellant, the Chief Executive Officer of the Department of Communities (the Department), has applied for leave to appeal an order made by the Children's Court dismissing an application for a protection order (time limited) in relation to a child, TR. The appellant has also applied for an order pursuant to s 12 of the Criminal Appeals Act 2004 (WA) that there be a stay of the order made by the Children's Court pending the determination of the appeal. The purpose of the stay is to ensure that the child remains in provisional protection until the appeal is determined. On 7 November 2017, I granted the stay order and said that reasons for my decision would be published at a later time.

Background

1. The first respondent is the child's mother.  The second respondent is the child's maternal grandmother.  The third respondent is the child's father.  For ease of reference I will refer to them in these reasons as the mother, the grandmother and the father, respectively.

2. The father did not participate in the proceedings in the Children's Court because, at that time, DNA testing had not confirmed that he was the child's father.  Subsequently a paternity test has been undertaken which has confirmed that position.  In those circumstances, he was named by the appellant as a respondent to the appeal.

3. The child was born on 30 June 2016.  Initially she and her mother lived with the grandmother in Broome.  There were concerns that the mother was experiencing the emergence of post‑partum psychosis.  She and the child were admitted to Fiona Stanley Hospital in September 2016.  After that admission a 'care and safety plan' was developed in relation to the child on or about 29 and 30 September 2016. 

4. The mother and child returned to Broome and continued to live with the grandmother until late January or early February 2017.  There is conflicting evidence as to what caused that arrangement to end.  On 4 February 2017 the Department arranged short‑term accommodation in Broome for the mother and child.  On 21 February 2017 the mother and child were assisted by the Department to travel to Perth to obtain refuge accommodation. 

5. Between 16 March 2017 and 3 May 2017 the Department received a number of reports regarding the mother's wellbeing and her care for the child.  On 30 April 2017 the Department was contacted by a clinical nurse at the Bentley Mental Health Service seeking that a placement be arranged for the child.  That placement was sought because the mother had presented to the Bentley Hospital indicating that she did not feel that she could continue to care for the child.  The mother was offered voluntary admission to the hospital and entered into a negotiated placement agreement by which the child was placed in the Department's care for two days.

6. On 2 May 2017 the mother expressed a desire to terminate the negotiated placement agreement and to leave the hospital.  The child was then taken into provisional care on 3 May 2017.  The appellant then made an application to the Children's Court for a protection order (time limited) for one year.  The grandmother sought to be, and was, joined as a party to that proceeding.  Subsequently the grandmother sought an order placing the child in her care on an interim basis.  The grandmother filed affidavits which deposed to the mother's desire for the child to live with her.

7. The application by the grandmother for an interim placement order was filed in the Children's Court on 4 October 2017.  The application was opposed by the appellant due to concerns regarding whether the grandmother was suitable to be the child's carer.  It is unnecessary to detail the alleged basis for that concern.  An affidavit in support of the Department's opposition to the application was filed on 12 October 2017. 

8. The application for an interim placement order was listed to be heard on 13 October 2017.  Both the appellant and the grandmother sought an adjournment of that hearing.  The magistrate who presided at the hearing declined the adjournment applications.  During the course of the hearing the learned magistrate advised the parties that, rather than dealing with the interim placement application, he intended to determine the appellant's application for a protection order.  No witnesses were called and no expert evidence was available.  Although an order had been made for a paternity test, the test results had not yet been obtained, so the father was not represented.

9. The magistrate determined the matter on the papers that had been filed to that date.  At the conclusion of the hearing the magistrate dismissed the appellant's application for a protection order in respect of the child.  That dismissal is the subject of the appeal.

10. The mother was not present at the hearing on 13 October 2017. She was represented, but her lawyer withdrew as he had been unable to obtain any instructions from his client. After the dismissal decision, Departmental officers made an assessment of the child's needs. The mother's whereabouts were unknown and paternity had not at that stage been confirmed. The grandmother was resident in Broome and the Department's concerns regarding her suitability to be the child's carer had not been dealt with. In these circumstances a decision was made to return the child to provisional protection and care pursuant to s 37 of the Act. This resulted in the child staying with the same foster carers with whom she has lived since May 2017.

The grounds of appeal

1. In substance, the grounds of appeal are that the magistrate made errors of fact and law and that he failed to provide procedural fairness by effectively denying the appellant the opportunity to call relevant witnesses and to cross‑examine the grandmother, by dealing with the matter on the papers in circumstances where there was conflicting evidence and by dealing with the substantive application without proper notice to the parties.

Affidavits filed on the stay application

1. In support of its application for a stay, the appellant has filed an affidavit of Alanna Yates.  Ms Yates is employed as a senior child protection worker for the Department. 

2. Ms Yates states that the child has remained with the same foster carers since 21 May 2017.  The child has albinism and requires ongoing medical reviews as well as day‑to‑day protective and preventative measures, including factor 50 sunscreen and UV‑protective clothing.  Possible impact on her vision requires that the child be seen by an ophthalmologist.  The treating ophthalmologist is located in Perth.

3. Ms Yates states that the child was brought into provisional care due to an assessment that she was at significant risk of neglect, emotional and physical harm.  The mother last attended supervised contact with the child on 15 May 2017.  The mother has not since attended any scheduled meetings.

4. The appellant has also filed an affidavit of Mr Anthony Civiello, attesting to the efforts made to notify the mother and father of these proceedings.  It is sufficient to note in respect of the mother that, despite extensive inquiries, it has not proven possible to locate her.  The application for the stay and a copy of Ms Yates' affidavit were left at the mother's last known address on 30 October 2017.

5. The grandmother has sworn and filed an affidavit opposing the stay.  In it the grandmother states that she wants the benefit of the decision appealed from, that is, she wants the child to be placed in her care and protection.  She states that the mother has abandoned the child and that she, the grandmother, is the only person who has consistently been in the child's life since she was born  She says that she has maintained contact with the child by Skype contact once a week and has twice been to Perth for face‑to‑face contact.  She states that she is a suitable adult carer for the child and that the Department's opposition is unfounded.  She says that the mother's wish is for the child to be placed in her (that is, the grandmother's) care.

Relevant principles relating to the granting of a stay

1. A decision of a magistrate in the Children's Court dismissing an application for a protection order may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) as if it were a decision by a court of summary jurisdiction: s 42 Children's Court of Western Australia Act 1988 (WA).

2. Part 2 of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision: s 7(1). In this context the Supreme Court means the court as constituted by a single judge sitting in the General Division: s 6.

3. Section 12 of the Criminal Appeals Act relevantly provides as follows:

   12.Sentences etc., Supreme Court may suspend etc.

   (1)At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded -

   (a)the decision;

   (b)any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;

   (c)any statutory consequence of the decision.

   (2)The Supreme Court may amend or cancel an order made under this section at any time.

   (3)An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.

   (4)If the Supreme Court makes, amends or cancels any such order, it must give a copy of the order -

   (a)to the court of summary jurisdiction concerned; and

   (b)if the order relates to the statutory consequence of the decision being appealed, to any person who under a written law is required to register the statutory consequence.

   …

   (7)An order made under this section has effect despite section 11.

4. The principles set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, although developed in relation to civil proceedings, provide a useful guide to the exercise of the discretion under s 12 of the Criminal Appeals Act:  Anderson v Pankhurst [2012] WASC 287. See also PVS v Chief Executive Officer, Department for Child Protection [2010] WASCA 168, a decision relating to a stay sought in an appeal from a decision made in protection proceedings. Those principles can be summarised as follows:

   1.The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

   2.It is for the applicant for a stay to move the court to a favourable exercise of its discretion.

   3.The court will not do so unless special circumstances are shown justifying a departure from the ordinary rule.

   4.The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.  In other words, if a stay is refused, will the appeal be rendered nugatory.

   5.In any event, a stay will generally still be refused unless it can be established that the appeal process has reasonable prospects of success.

   6.The stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.

5. It is also relevant to take into account that s 7 of the Children and Community Services Act 2004 (WA) provides that the Children's Court must regard the best interests of the child as the paramount consideration when performing a function or exercising a power under that Act. Further, s 8 provides for certain matters to be taken into account in determining what is in the best interests of a child. Those matters include 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 (s 8(1)(g)). Although s 7 and s 8 do not apply directly to this court, they are materially relevant considerations when determining whether to grant a stay as sought by the appellant.

Appellant's submissions

1. The appellant submits that there are special circumstances which justify a departure from the general rule that a successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.  The decision of the learned magistrate to dismiss the appellant's application did not result in an order being made granting relief to any party.  No determination as to whether any of the respondents was a suitable person to care for the child was made.  In particular, the grandmother's application for interim placement was not dealt with.  Accordingly there was no 'successful' litigant who could properly claim an interest in the enforcement of the dismissal order.

2. In any event, the appellant submits that the balance of convenience and the protection of the child's interests lie in the grant of a stay.  It was submitted that the child's interests are best protected by maintaining the status quo and thus ensuring that she remains with her present foster carers.  

3. Further, there was said to be a likely risk of harm to the child if a stay was not ordered. In that event, the child would have to be placed as soon as practicable with one of the people nominated in s 38 of the Children and Community Services Act.  This includes a parent or a person who the parent has consented to care for the child.  The child has not been with her mother since May 2017 and the whereabouts of the mother are presently unknown.  The child has never lived with the father, who presently lives in Victoria.  As to whether the mother has consented to the grandmother caring for the child, there was some evidence before the magistrate to this effect.  However, it is not clear that this was intended to be an indefinite arrangement.  In any event, the suitability of the grandmother to be a carer for the child has not been determined.  That is an issue which, if the appeal was allowed and the matter remitted to the Children's Court, would be determined in those proceedings.

4. The appellant submitted that it is in the child's best interests for a stay to be ordered because:

   1.The child is presently settled in her current living arrangements and is able to maintain and develop a relationship with the grandmother notwithstanding that arrangement.

   2.The magistrate's order was made on the understanding that the mother would place the child in the grandmother's care.  That understanding was made without regard to the father's status as the child's father so that, even if it was open for the learned magistrate to find as he did, there was a materially relevant consideration that was not taken into account at the time that decision was made.

   3.There is not presently any evidence before the court as to the father's intentions or proposals for the child so that it cannot be determined whether or not it is better that no protection order be made.

   4.That is particularly so where the mother and the father reside in different States so that, wherever the child resides in the interim, she will be absent from one of her parents and both parents should have the opportunity to make the decision as to where the child lives.

   5.The learned magistrate found that the child was in need of protection from the mother.

5. The appellant also submitted that there were reasonable prospects that the appeal would be granted and the matter remitted to the Children's Court.  In that event all parties would have an opportunity to test the evidence before a determination was made as to whether a protection order should be made.

First respondent (the mother)

1. The mother has not been located.  Attempts to personally serve her with the papers in respect of this matter have been unsuccessful.  She did not participate in the proceedings on 13 October 2017 before the magistrate and has not participated in the present application.

Second respondent (the grandmother)

1. The grandmother submitted that the Department had acted unlawfully by returning the child to provisional protection after the dismissal decision and that a stay would serve to reward that unlawful action. It was submitted that the dismissal decision had the effect that the child ceased to be in care and required the Department to return the child as soon as practicable to a parent or, with the consent of a parent, another person: s 38(2). It was said that no attempt was made to comply with this requirement. Rather, the Department returned the child to provisional protection under s 37 of the Act.

2. The grandmother submits that the mother has made clear her wish that she (the grandmother) care for the child.  In these circumstances it is said that the effect of the dismissal decision should have been that the child was placed in her care.  In this sense it is said she had an interest in the outcome of the proceedings in the court below. 

3. The grandmother maintains that she has a close familial bond with the child and that she has continued to maintain contact with the child.  It was suggested that the Family Court would be an appropriate forum for deciding the parental responsibilities regarding the child as between interested family members.

4. It was submitted that a stay would occasion hardship to the child by forcing her to remain in non‑family foster care far from her maternal family and that this may cause emotional harm to the child.

Third respondent (the father)

1. Since the dismissal of the protection application in the Children's Court the results of a paternity test have been obtained. They have confirmed that the third respondent is the father of the child. As such he is, and was always, a party to the proceedings: s 147(b).

2. The father appeared by telephone to represent himself at the hearing of this application.  He made no submissions in respect of the application.  He did not state that he was opposed to the application. 

Merits of the application

1. At the conclusion of the hearing I granted the stay.  I did so for the following reasons:

   1.The child is presently in the care of foster carers and has been since May 2017.  That is a substantial period of time in the life of a young child.  All the indications are that she is presently safe and well cared for.  She has some specific medical needs that require daily attention and attendance on medical specialists in Perth.  Those needs are being met in foster care.

   2.The magistrate found that the child was in need of protection from the mother.  There is no reason to think that this position has changed.  If a stay is not granted there is no certainty that the mother would not seek to resume custody of the child, nor is it apparent that the child could be placed in the care of the grandmother, whose suitability as a carer has not been determined.  Furthermore, the evidence as to whether the mother has consented to the grandmother having the care of the child in the long term is equivocal and is subject to dispute.

   3.The father did not have an opportunity to participate in the proceedings in the Children's Court and there is presently no evidence as to his intentions or proposals for the child so it cannot be presently determined whether or not it is better that no protection order be made.

   4.If a stay order is not made and the appeal is ultimately successful, the effect would be that the child would be moved out of foster care, and then returned to such care.  It is obviously undesirable that there be such discontinuity and instability in the child's living arrangements.

   5.To the extent that the child has formed a positive relationship with the grandmother, the continuation of this relationship could be accommodated if the child remained in foster care. 

   6.There are good prospects that the appeal will ultimately be successful.  In this event the matter will be remitted to the Children's Court for a hearing to determine whether a protection order should be made.  This would provide an opportunity for all of the parties to present evidence, including expert evidence, relevant to the child's interests.

   7.Any prejudice to the respondents arising from delay in resolving the protection status of the child could be minimised by making an urgent appeal order.

1. For these reasons I granted a stay of the dismissal order pending the determination of the appeal. I also made an order making it clear that the statutory consequences that flowed from the dismissal order, namely that the provisional protection ceased and that the child was to be returned to, or placed in the care of, a parent or other person referred to in s 38(2), were also suspended. An urgent appeal order was made.

Other matters

1. The grandmother made an application for an interim order under s 42(2) of the Act, for the child to be placed in her care pending the resolution of the appeal. She also submitted that such an order could be made as an interim order under the Criminal Procedure Rules 2005 (WA).

2. As the grandmother was not a party aggrieved by the dismissal decision and her application in the Magistrates Court was not dealt with, she is neither an appellant nor entitled to appeal in respect of the proceedings in the Magistrates Court. Accordingly, an order under s 42(2) was not available. There is no interim order available under the definition in r 58 of the Criminal Procedure Rules which would otherwise achieve what the grandmother wishes.  In any event, for the reasons I have given in respect of the stay application I would not have made such an order even if it was open to me to do so.

3. There was also an issue as to the proper parties to the appeal.  It was accepted that the father was properly joined, even though he had not been able to participate in the Magistrates Court proceedings.  The parties also agreed that as the child was a party to the protection proceedings (s 147(a)), she should also be a party to the appeal.  An order to that effect was made.