DH and SH and Department For Child Protection
[2014] WASAT 151
•7 NOVEMBER 2014
DH & SH and DEPARTMENT FOR CHILD PROTECTION [2014] WASAT 151
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 151 | |
| CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) | |||
| Case No: | CCS:3/2013 | 19 AND 25 SEPTEMBER 2014 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 7/11/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application for an order that the proceedings be dismissed is upheld Application under CCS 3 of 2013 is dismissed | ||
| B | |||
| PDF Version |
| Parties: | DH & SH DEPARTMENT FOR CHILD PROTECTION |
Catchwords: | Children Protection order Review of care planning decisions Vexatious proceedings Proceedings misconceived Abuse of process Jurisdiction of Tribunal Relitigation of determined issues Material change in circumstances Order for proceedings to be dismissed |
Legislation: | Children and Community Services Act 2004 (WA), s 7, s 44, s 45, s 47, s 54, s 57, s 60, s 67, s 69A, s 68, s 89, s 90, s 90(1), s 91, s 92, s 93, s 93(6), s 93(6)(a), s 94, s 143 Family Court Act 1997 (WA), s 66(1) State Administrative Tribunal Act 2004 (WA), s 4, s 31, s 47, s 47(1)(c), s 47(2), s 87(1), s 87(2) Vexatious Proceedings Restriction Act 2002 (WA), s 3 |
Case References: | Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 DH and Department for Child Protection [2011] WASAT 146 Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 Jackson v Goldsmith (1950) 81 CLR 446 Laurent and Commissioner of Police [2009] WASAT 254 MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66 SH and Executive Officer of the State Administrative Tribunal [2008] WASAT 192 |
Orders | On the application heard on 19 and 25 September 2014 by Deputy President, Judge Sharp, it is on 7 November 2014 ordered that:,1. Pursuant to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) the application under CCS 3 of 2013 is dismissed. |
Summary | An application was made by both of the father and the grandfather of a child the subject of a protection order under the Children and Community Services Act 2004 (WA). The application was for a review of care planning decisions made in relation to the child. The application, in essence, sought unsupervised contact with the child by the grandfather in substitution for the existing contact arrangements which provide for contact by the grandfather only under the supervision of the child's father.,The Department for Child Protection applied to the Tribunal for the application to be struck out. ,The Department submitted that part of the application extended to a review of matters beyond the jurisdiction of the Tribunal. The Department also argued that, in respect of the other parts of the application, the question of unsupervised contact with the child by the grandfather had already been considered and rejected by the Tribunal on two previous occasions. The Department submitted that it was an abuse of process to seek a further review in the absence of any material change in circumstances.,The Tribunal considered the scope of its jurisdiction and concluded that its power of review is restricted to a review of care planning decisions, and did not extend to a review of the care plan as a whole.,The Tribunal also concluded that, while noting that the doctrine of res judicata may not apply to child welfare proceedings, parties are not at liberty to continually reapply for a review when the substance of the review has previously been determined by the Tribunal. Such a review should only proceed if there has been a material change of circumstances which would warrant that further review.,The Tribunal found that the substance of the applicants' application had been determined by the Tribunal on two previous occasions and that there had been no material change of circumstances which would warrant a further review.,The Tribunal accordingly upheld the respondent's application and dismissed the applicants' application for review. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) CITATION : DH & SH and DEPARTMENT FOR CHILD PROTECTION [2014] WASAT 151 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 19 AND 25 SEPTEMBER 2014 DELIVERED : 7 NOVEMBER 2014 FILE NO/S : CCS 3 of 2013 BETWEEN : DH & SH
- Applicants
AND
DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
Children Protection order Review of care planning decisions Vexatious proceedings Proceedings misconceived Abuse of process Jurisdiction of Tribunal Relitigation of determined issues Material change in circumstances Order for proceedings to be dismissed
Legislation:
Children and Community Services Act 2004 (WA), s 7, s 44, s 45, s 47, s 54, s 57, s 60, s 67, s 69A, s 68, s 89, s 90, s 90(1), s 91, s 92, s 93, s 93(6), s 93(6)(a), s 94, s 143
Family Court Act 1997 (WA), s 66(1)
State Administrative Tribunal Act 2004 (WA), s 4, s 31, s 47, s 47(1)(c), s 47(2), s 87(1), s 87(2)
Vexatious Proceedings Restriction Act 2002 (WA), s 3
Result:
Application for an order that the proceedings be dismissed is upheld
Application under CCS 3 of 2013 is dismissed
Summary of Tribunal's decision:
An application was made by both of the father and the grandfather of a child the subject of a protection order under the Children and Community Services Act 2004 (WA). The application was for a review of care planning decisions made in relation to the child. The application, in essence, sought unsupervised contact with the child by the grandfather in substitution for the existing contact arrangements which provide for contact by the grandfather only under the supervision of the child's father.
The Department for Child Protection applied to the Tribunal for the application to be struck out.
The Department submitted that part of the application extended to a review of matters beyond the jurisdiction of the Tribunal. The Department also argued that, in respect of the other parts of the application, the question of unsupervised contact with the child by the grandfather had already been considered and rejected by the Tribunal on two previous occasions. The Department submitted that it was an abuse of process to seek a further review in the absence of any material change in circumstances.
The Tribunal considered the scope of its jurisdiction and concluded that its power of review is restricted to a review of care planning decisions, and did not extend to a review of the care plan as a whole.
The Tribunal also concluded that, while noting that the doctrine of res judicata may not apply to child welfare proceedings, parties are not at liberty to continually reapply for a review when the substance of the review has previously been determined by the Tribunal. Such a review should only proceed if there has been a material change of circumstances which would warrant that further review.
The Tribunal found that the substance of the applicants' application had been determined by the Tribunal on two previous occasions and that there had been no material change of circumstances which would warrant a further review.
The Tribunal accordingly upheld the respondent's application and dismissed the applicants' application for review.
Category: B
Representation:
Counsel:
Applicants : Self represented
Respondent : Ms N Eagling
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
DH and Department for Child Protection [2011] WASAT 146
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Jackson v Goldsmith (1950) 81 CLR 446
Laurent and Commissioner of Police [2009] WASAT 254
MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66
SH and Executive Officer of the State Administrative Tribunal [2008] WASAT 192
Introduction
1 On 12 June 2013, SH filed an application with the Tribunal under s 94 of the Children and Community Services Act 2004 (WA) (CCS Act) for a review of a decision made by the Chief Executive Officer (CEO) of the Department for Child Protection (Department). DH was later joined as a joint applicant. The application relates to care planning decisions made by the CEO for a child C who has been placed in the CEO's care. C is the daughter of DH and the granddaughter of SH. The application, as subsequently amended in August 2014, is the latest in a series of applications made over a number of years by SH and DH in relation to C.
2 On 3 September 2014, the respondent applied to strike out that application.
3 The strike out application was heard before the Tribunal on 19 and 25 September 2014. The Tribunal's decision and the reasons for it are set out below.
Background facts
4 This matter has an extensive history with the Tribunal, including the Tribunal's decision in DH and Department for Child Protection [2011] WASAT 146 (2011 decision). The 2011 decision contains a useful summary of that history and the background to the matter generally. I will repeat some of that below.
5 C was born on 17 November 2004. She has an older brother, A, who was born 10 months earlier on 4 January 2004. DH is the father of A as well as C and the mother of both children is SM.
6 A was born severely brain damaged and he requires a high level of care generally. He was placed in provisional protection and care pursuant to s 35 of the CCS Act on 21 September 2006. On 2 May 2007, A was made the subject of a protection order until he is 18, which will therefore expire on 4 January 2022. The arrangements in relation to A were not the subject of challenge in the previous application and they are not the subject of challenge in these proceedings.
7 C was placed in provisional protection and care pursuant to s 37 of the CCS Act on 3 January 2007. She was then made the subject of a protection order on 4 December 2007 for a period of two years. DH did not oppose the making of that order and SM did not participate in the hearing. The order was extended on 28 January 2010 for a further two years.
8 The protection orders in respect of each child were put in place to satisfy concerns as to the physical home environment being provided to the children and increasing concerns around ongoing and increasing incidents of domestic violence. The Department was also concerned that C was exhibiting developmental delay and that there was a lack of engagement with counselling and support services to address those needs.
9 Upon her removal from her parents' care, C was placed with SC, who has the care of five other children. C has remained in SC's care ever since.
10 In March 2008, a report commissioned by the Department about DH was prepared by a psychologist, Ms Kirstin Bouse. That report set out a troubled and unsettled childhood as reported by DH. His parents had separated when he was seven years of age and he was 'passed between' his parents until he was 17 years of age. By that time, he had used a range of drugs including cannabis and excessive quantities of alcohol. He reported heavy drug use characterising his life for the following three years during which time he reported having engaged in various criminal behaviours. His relationship with SM was adversely affected by regular illicit drug use. DH reported being under psychiatric care by the age of 19. By the time Ms Bouse saw him, DH was aged 25. She formed the view that DH's admissions to psychiatric care appeared to have occurred during a period when DH was abusing various substances, but although his use of drugs appeared to have diminished, substance abuse was considered to remain a risk to DH's psychological stability.
11 Ms Bouse expressed the opinion that DH was not in the position to assume the primary caregiving role for C, but was capable of spending increased time with her without the need for supervision. She considered that DH may well be able to assume primary care of C should he fully commit to certain recommendations which she made.
12 The CCS Act provides that the CEO of the Department must prepare and implement a care plan for a child in the CEO's care and must regularly carry out a review of the operation and effectiveness of that plan.
13 A care plan for C was made in August 2008. SH appealed to the case review panel established for that purpose under s 92 of the CCS Act for a review of the contact arrangements proposed in the August 2008 care plan. The care plan was upheld by the case review panel. On 6 March 2009, SH, who is C's grandfather and DH's father, then applied to the Tribunal for a review of the case review panel decision. That application was dismissed by the Tribunal.
14 Shortly before that hearing of the Tribunal in 2009, a further care plan meeting occurred. That resulted in a further care plan (September 2009 care plan) which provided for C's increased contact with DH and decreased contact with SH.
15 SC applied to the case review panel for a review of the September 2009 care plan, challenging the proposal to work towards possible reunification of C with DH. The case review panel upheld the care plan.
16 In January 2010, the contact arrangements were changed so that there was supervised contact for C with DH twice per week and supervised contact with SH once per month.
17 On 28 June 2010, DH brought another application to the Tribunal for increased unsupervised contact with C and for reunification to commence immediately. That application gave rise to a series of mediation hearings which led to a fresh care plan being made on 4 November 2010 (November 2010 care plan). A significant change in the November 2010 care plan was that it was designed to 'set a direction towards permanency planning for C's long term care'. The November 2010 care plan foreshadowed the Department's intention to make an application for C to remain in the care of the Department under a protection order until she was 18 years of age.
18 Under the November 2010 care plan, C was to remain in her placement with SC.
19 SH once more applied to the CEO, this time for a review of the November 2010 care plan. The case review panel met on 1 February 2011 to consider the application and determined to uphold the care plan.
20 In 2011, both SH and DH applied to the Tribunal for a review of a previous decision of the CEO concerning the then current care plan for C. On 16 September 2011 the Tribunal delivered its decisions in respect of those applications. Its decisions and its reasons for those decisions are set out in the 2011 decision which I referred to earlier in these reasons.
21 The 2011 decision concluded that the November 2010 care plan should be amended so that DH has unsupervised contact with C for up to six hours on a weekend. It contemplated that, in time, this period might be increased. The Tribunal expressly stated that overnight contact was inappropriate.
22 DH's increased contact with C was made subject to a condition that DH undergoes urinalysis at a frequency to be determined by the Department on the basis that if any illicit drugs are detected on testing, unsupervised contact will cease and be replaced by supervised contact. Further, a condition was included that DH supervise any contact between SH and C and that SH not be permitted to have contact with C other than in the presence of DH or some other responsible adult.
23 The Tribunal did not make any separate provision for contact between C and SH. The Tribunal observed in this regard that SH's relationship with C as her grandfather can, in the period with which the November 2010 care plan was concerned, be adequately maintained and developed through contact for which her father, DH, is responsible.
The 2012 protection order from the Children's Court and the s 143 proposal
24 On 27 August 2012, the Children's Court revoked the then current protection order in respect of C and made a protection order in respect of C until she is 18.
25 The Children's Court order included the following recommendation:
The parties comply with the s143 proposal attached.
26 Section 143 of the CCS Act provides that after a protection order is made for a child, the CEO must file a document that outlines the proposed arrangements for the wellbeing of the child.
27 The proposal under s 143 of the CCS Act was prepared by Ms Helen Ballantine, a senior child protection worker with the Department. The s 143 proposal sets out the relevant background in respect of C. It notes that the Department recognises that C has a close and significant relationship with her father, DH and would like to continue to promote this by increasing the level of time C sees her father 'as per the recommendations from the recent psychological assessment'.
28 The s 143 proposal sets out the recommendations of that psychological assessment as follows:
1) Primary care of C should remain with SC and C's contact with DH be extended to overnight visits.
2) DH must establish a home separate from SH with a room for C.
3) SH is not to sleep in the same home as C unless she is in the room apart from him, sharing with a suitable adult.
4) SH is not to be left alone with C at any time.
5) DH should submit to ongoing random drug testing for the period covering the transition period, plus six months.
6) C to be regularly seen by a clinical psychologist who specialises in children during the period of the transition to shared care, plus 12 months. These sessions should be initially fortnightly, moving to monthly unless required more often, as determined by the clinical psychologist and [the Department's] case manager. The sessions will enable independent monitoring of C's emotional and behavioural coping throughout the transition.
7) DH should commence a group parenting course focusing on six to 10 year olds, or alternatively, undertake individual sessions with a clinical psychologist who can provide a tailored programme for him. This is to run concurrently with the transition.
8) SC and DH should be offered counselling to manage their feelings and issues associated with the transition of C to shared care.
9) Consideration needs to be given to the needs of C's foster siblings who may need some counselling to help them with C's changed circumstances.
10) DH and SC will need to participate in sessions with a suitable third party to work out ground rules for C's shared care prior to, and during the transition to shared care. This will not be an easy process and will need to evolve over time. This will generally be supervised by [the Department's] case worker, but be undertaken by an independent third party such as a clinical psychologist with parenting expertise.
11) C will need the process of transition to move steadily, but be somewhat flexible. Overnight visits with DH should begin as soon as practicable after he has moved to a suitable new home. C should commence with her clinical psychologist at the same time as the transition to overnights commences.
12) The transition process needs to be mapped out with [the Department's] case worker, and then monitored with input from the third party referred to at recommendation 10, C's clinical psychologist referred to at recommendation 7 and other relevant persons, plus SC and DH.
29 The transition proposal as set out in the s 143 proposal is as follows:
• C to spend one night overnight contact per fortnight with DH from 9 am on Saturday until 9 am on Sunday. On the alternate week, C to have one day contact with DH on the weekend, from 9 am until 3 pm on either Saturday or Sunday. This is to commence immediately after DH has secured his own accommodation and to last approximately four weeks before any further increase in contact so that C's emotional wellbeing can be reviewed.
• C to spend one overnight contact per fortnight with DH from 9 am on Saturday until 4 pm on Sunday. On the alternate week, C to have one day contact with DH on the weekend from 9 am to 3 pm on either Saturday or Sunday. This is to last approximately four weeks before any further increase in contact so that C's emotional wellbeing can be reviewed.
• C to spend two overnight contacts per fortnight with DH from 4.30 pm Friday until 4 pm on Sunday. C will also have contact with DH midweek on the alternate week from 4 pm until 7.30 pm. This is to last approximately four weeks before any further increase in contact so that C's emotional wellbeing can be reviewed.
• C to spend three nights per fortnight with DH from 4.30 pm on Thursday until 4 pm on Sunday. C will also have contact with DH midweek on the alternate week from 4 pm until 7.30 pm. This is to last approximately four weeks before any further increase in contact so that C's emotional wellbeing can be reviewed.
• C to spend four nights per fortnight with DH from 4.30 pm on Thursday until 8.30 am on Monday. C will also have contact with DH midweek on the alternate week from 4 pm until 7.30 pm.
• C to spend Christmas 2012 with SC and Easter 2013 with DH. C to then alternate Christmas and Easter with SC and DH. This should remain flexible and take into account C's wishes.
• All of C's care needs, including things such as bathing, changing, toileting and night time routines are to be undertaken by DH only.
30 The s 143 proposal notes that if DH is unable to secure and maintain his own accommodation at any time, his contact with C must revert back to one contact per week, either on a Saturday or a Sunday for a period of six hours until such time as DH is able to secure his own accommodation once again, independent of SH.
31 Finally, the s 143 proposal observes that reunification with DH is not being considered. The Department acknowledges that C has a close and significant relationship with DH but its assessment is that C's primary attachment is with her foster carer whom she has been in the care of since the age of two.
The September 2012 care plan
32 Another care plan was then issued for C in September 2012 (September 2012 care plan). The September 2012 care plan identified that the main priority for C is 'to be placed within a secure and stable home environment that offers her consistency, affection and nurturing within a predictable and reliable framework to enable [C] to reach her full potential in the areas of social, cultural, educational, physical health and emotional development'. The September 2012 care plan notes that it is 'envisaged that [DH] gradually commences spending more time with [C] inclusive of overnight stays once he has sourced his own accommodation independent from [SH]'.
33 The care planning decisions in the September 2012 care plan include C remaining in her current placement with SC, but spending increasing time with DH. C's contact with DH is to be extended to overnight visits once DH has secured 'independent accommodation from [SH]'.
34 The contact arrangements under the September 2012 care plan included C having contact with DH once per week on a Saturday for a period of six hours. The contact is unsupervised. C's contact with SH is to be supervised by DH during DH's contacts with C.
35 The September 2012 care plan contemplated that C's contact with DH will change during the subsequent 12 months, with C's contact with DH increasing to overnights and her care arrangements to be more in line with 'shared care' between [DH] and [SC]'. The ultimate aim, according to the September 2012 care plan, is that C will spend from Thursday after school through to Monday morning with DH on a fortnightly basis. During the alternate week, C would have an after school contact with DH. The remainder of the time, C is to be in the care of SC.
36 SH applied to the CEO for a review of the September 2012 care plan and on 8 May 2013 the CEO of the Department wrote to SH informing him 'that the decision as set out in the [September 2012 care plan] be upheld'. The reasons given by the CEO for this decision are as follows:
1. Both C and A are progressing well in their current placements.
2. The Department has 'adopted the decisions' in the 2011 decision of the Tribunal and was taking a 'cautious approach' with regard to contact between SH and C.
3. The Department engaged a consultant psychologist in 2012 that provided a detailed report including recommendations relating to contact between SH and C which the Department took into account when the Department prepared the September 2012 care plan.
The application to the Tribunal in 2013
37 SH then made an application to the Tribunal, which was received on 12 June 2013 (the 2013 application), for a review by the Tribunal of the CEO's decision to uphold care planning decisions in the September 2012 care plan. The substance of the 2013 application was to have the conditions in the then current care plan for C varied to allow for increased contact with C by both DH and, separately, SH, including some overnight contact. The application stipulated that SH's contact was to be unsupervised. The 2013 application also sought further orders, but those parts of the 2013 application were struck out by order of the President of the Tribunal on 19 November 2013.
38 By order made on the same date, DH was joined in the proceedings as a joint applicant.
The hearing on 29 and 30 January 2014
39 The 2013 application was part heard on 29 and 30 January 2014. The Tribunal was at that point constituted by me and by Ms D Taylor, who was then a senior member of the Tribunal.
40 At the conclusion of the hearing, the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) invited the CEO of the Department to reconsider the care planning decisions in C's then current care plan. However, following the making of that order, the Department advised the Tribunal that the September 2012 care plan was currently under review as required under s 90(1) of the CCS Act and that a new care plan was about to be published.
41 On 8 April 2014, a new care plan (the April 2014 care plan) was published for C.
The current application
42 On 23 April 2014, SH applied for a review by the CEO of the care planning decisions contained in the April 2014 care plan, and on 31 July 2014 the CEO of the Department confirmed the decision of the case review panel to uphold the care planning decisions contained in the care plan for C.
43 SH and DH then sought a review by the Tribunal of the CEO's decision, which they applied for by way of filing on 19 August 2014 an application containing amendments to the 2013 application (amended application). The amended application was accepted by the Tribunal, even though it was in effect a new application.
44 Under the section in the amended application headed 'New Decisions to be reviewed', SH and DH listed the following decisions about which they sought review:
1) CRP will only hear matters that are directly related to the Applicant and will not hear any matters that they feel apply to any other person unless the person making the Application is the Foster Carer.
2) [SH] is not to be involved with further planning because he is vexatious and litigious and does not act in [the] Child's best interest and is thus not a person with a direct and significant interest in [C].
3) [SH] is not to be left alone with [C].
4) Contact between [C] and [SH] is to be supervised by [DH].
5) Contact to occur monthly during [DH's] contact and under [DH's] supervision.
6) As per CCS03/2013 Application.
45 Under the section of the amended application entitled 'Decisions to be made', SH and DH specified the following conditions that they wished to be included in C's care plan:
1) The paternal grandfather to have contact with [C] for 3 hours every 4th Sunday at a time suitable for the Departmental carer, once per month after school until 7.30 at a day suitable for the departmental carer and 4 days every Christmas school holiday period.
2) [C] to have the opportunity for overnight contact with her father should he choose to do so every 4 weeks from 5pm Friday until 5pm on Saturday with the Department to be given 1 weeks' [sic] notice in advance if he wishes to avail [C] of this contact.
3) [C] to have 1 weeks overnight contact every school holiday period with the father with the department to be given 1 weeks; [sic] notice in advance if he wishes to avail [C] of this contact.
4) The father is given sufficient notice to attend school concerts, carnivals, parent teacher meetings etc. and be able to speak to [C's] teachers. The grandfather and any other family member are able to attend school concerts etc. with the invitation of the father.
5) The decision that the paternal grandfather is vexatious and litigious and is no longer a person with direct and significant interest in [C] be overturned and the grandfather continue to be part of the care plan review process.
6) That the decision of the Case Review Panel to selectively decide which applications sections to be reviewed and the weight to be placed on each applicant's application when deciding which decision to review be reversed and the previous situation and inclusivity of the legislation be maintained.
46 On 3 September 2014, the Department then filed an application for an order under s 47(2) of the SAT Act that the amended application 'be dismissed or struck out on the grounds that the proceeding is frivolous, vexatious and lacking in substance or alternatively is an abuse of process.'
47 That application was heard before me on 19 and 25 September 2014.
Legislation
48 The relevant provisions of the CCS Act are as follows:
7. Best interests of child are paramount consideration
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
89. Care plans, preparation etc. of
(1) In this section
care plan means a written plan that
(a) identifies the needs of the child; and
(b) outlines steps or measures to be taken in order to address those needs; and
(c) sets out decisions about the care of the child including
(i) decisions about placement arrangements; and
…
(ii) decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life.
(3) Subsection (2) does not apply in the case of a child taken into provisional protection and care.
Note: Section 39 requires the CEO to prepare and implement a provisional care plan for a child taken into provisional protection and care.
(4) The CEO may modify a care plan at any time if the CEO considers that it is appropriate to do so.
(5) Without limiting subsection (4), the CEO must, in the case of a child who is about to leave the CEO's care, modify the care plan for the child so that it
(a) identifies the needs of the child in preparing to leave the CEO's care and in his or her transition to other living arrangements after leaving the CEO's care; and
(b) outlines steps or measures designed to assist the child to meet those needs.
(6) As soon as practicable after the CEO prepares or modifies a care plan, the CEO must ensure that a copy of the care plan or modification, as the case requires, is given to
(a) the child; and
(b) each parent of the child; and
(c) any carer of the child; and
(d) any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
(1) The CEO must carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months.
(2) In the course of the review the CEO must have regard to any views expressed by
(a) the child; and
(b) a parent of the child; and
(c) any carer of the child; and
(d) any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
91. Terms used
In this Subdivision, unless the contrary intention appears
applicant means a person who makes an application under section 93(1);
care plan has the meaning given to that term in section 89(1);
care planning decision, in relation to a child, means a decision set out in a care plan for the child but does not include a secure care decision referred to in section 88G;
case review panel means the case review panel established under section 92;
parenthas the meaning given to that term in section 42.
92. Case review panel
(1) The CEO must establish a case review panel for the purposes of this Subdivision.
(2) The case review panel is to consist of not less than 3 members appointed by the CEO.
…
93. Initial review
(1) An application for the review of a care planning decision may be made to the CEO by
(a) the child; or
(b) a parent of the child; or
(c) any carer of the child; or
(d) any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
(2) The application
(a) must be in writing; and
(b) must set out the grounds on which a review is sought.
(3) The application must be made within
(a) 14 days after the day on which the applicant received a copy of a care plan or modification of a care plan setting out the relevant care planning decision; or
(b) any longer period that the CEO in special circumstances allows.
(4) The CEO must refer the application, together with such other material as the CEO considers relevant, to the case review panel.
(5) On a referral under subsection (4) the case review panel must consider the application and other material (if any) and report to the CEO on its recommendations in respect of the application.
(6) The CEO, after considering the report of the case review panel and any other information available to the CEO, must
(a) confirm, vary or reverse the care planning decision; or
(b) substitute another decision for the care planning decision; or
(c) refer the matter back to the case review panel for further consideration and report.
(7) The CEO must give the applicant written notice of his or her decision under subsection (6) and written reasons for it.
(8) If an application is made under subsection (1), the decision that is the subject of the application continues to have effect pending the review unless the CEO otherwise directs.
50 Responsibility for making protection orders rests with the Children's Court (CCS Act s 45). There are a number of types of protection orders. Section 47 provides for a protection order (supervision) which is an order providing for the supervision of the wellbeing of a child by the CEO for a specified period. A protection order (supervision) does not affect the parental responsibility of any person for the child (CCS Act s 47).
51 A protection order (time limited) is an order giving the CEO parental responsibility for a child for the period specified in the order (CCS Act s 54). A protection order (until 18) is an order giving the CEO parental responsibility for the child until the child reaches 18 years of age (CCS Act s 57). A protection order (special guardianship) is an order giving an individual or two individuals jointly, parental responsibility for a child until the child reaches the age of 18 years (CCS Act s 60).
52 Applications for protection orders may be made under s 44 of the CCS Act.
53 Section 67 of the CCS Act provides that a party to the initial proceedings may apply to the Children's Court for the revocation of a protection order. Under s 68, the CEO may apply to the Court for the revocation of a protection order and the making of another protection order in respect of a child. Pursuant to s 69A, a carer of a child who has been the subject of a protection order may apply for revocation of the protection order and the making of a protection order (special guardianship) in respect of the child. As the Tribunal said in the 2011 decision, it can be seen that questions of the long term care, and parental responsibility, in respect of a child fall within the jurisdiction of the Children's Court. The question of parental responsibility, and the duration of orders conferring parental responsibility, is not therefore a matter to be dealt with by way of a care plan. Nor is it appropriate for the Tribunal, in its review jurisdiction in relation to care plans, to make decisions inconsistent with the nature of the protection order to which the relevant child is subject.
54 The relevant provisions of the SAT Act are as follows:
4. What it means to bring or conduct proceeding vexatiously
A person brings or conducts a proceeding vexatiously if it would result in the proceeding being vexatious proceedings as defined in the Vexatious Proceedings Restriction Act 2002 section 3.
47 Frivolous etc. proceedings, dismissal of etc.
(1) This section applies if the Tribunal believes that a proceeding
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
…
(a) which are an abuse of the process of a court or a tribunal;
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
The strike out application proceeding misconceived
56 The Department submits that certain parts of the amended application should be struck out on the basis that they are misconceived.
57 The term 'misconceived' connotes a misunderstanding of legal principle;Laurent and Commissioner of Police [2009] WASAT 254 at [23]. The Department says that parts of the application are misconceived in the sense that the Tribunal does not have the jurisdiction to consider them.
58 In SH and Executive Officer of the State Administrative Tribunal [2008] WASAT 192, the Tribunal observed that, under s 94 of the CCS Act, its power of review is limited to a decision made by the CEO under s 93(6)(a) or (b) of the CCS Act. The decision of the CEO which is reviewable by the Tribunal is therefore the CEO's decision to:
a) confirm, vary or reverse a care planning decision; or
b) substitute another decision for the care planning decision.
59 Care planning decisions are defined under s 91 of the CCS Act to mean decisions set out in a care plan for a child. It therefore follows that not everything which is included in a care plan is a 'care planning decision'.
60 The care planning decisions for C are set out in paragraphs 1.3 and 5.3 of the April 2014 care plan.
61 Those care planning decisions are as follows:
a) At paragraph 1.3.2 of the April 2014 care plan:
SH is not to be left alone with C at any time.
b) At paragraph 1.3.5 of the April 2014 care plan:
DH will ensure that SH will not be left alone with C for any reason and/or any amount of time. DH must always ensure that he can see C and ensure that he can hear any conversations and comments that are made and is able to readily intervene if needed.
c) At paragraph 5.3.5 of the April 2014 care plan:
Contact between SH and C to be supervised by DH. DH will ensure that SH will not be left alone with C for any reason and/or any amount of time. DH must always ensure that he can see C and ensure that he can hear any conversations and comments that are made and is able to readily intervene if needed.
63 Accordingly, on 25 September 2014, I made a number of orders, including the following:
1. Paragraphs 1, 2 and 5 in the "New decisions to be reviewed" section of the applicant's application are struck out.
2. Paragraph 6 in the "New decisions to be reviewed" section of the applicant's application is struck out except to the extent that it relates to paragraphs 3 and 4 under that heading.
3. Paragraphs 2, 3, 4, 5 and 6 in the "Decision to be made" section of the applicant's application are struck out.
64 I then reserved my decision on the Department's further submission that the remainder of the amended application should be dismissed on the basis that it is an abuse of process.
The strike out application proceeding vexatious or otherwise an abuse of process
65 Under s 47 of the SAT Act, the Tribunal has the power to dismiss, strike out, or make 'any appropriate order' in dealing with a proceeding that is vexatious or is otherwise an abuse of process.
66 The term 'abuse of process' has an acquired legal meaning. Where it is used in s 47 of the SAT Act, the term has its acquired legal meaning; Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 (Erujin) at [34].
67 Provided that an issue of law or fact which has been determined in earlier proceedings can be identified, the court and the parties may be protected against an abuse of process by way of attempted re-litigation of the determined issues; Erujin at [54].
68 The principles relating to abuse of process in a court of record, including by relitigation of a matter already determined, are properly applied to the Tribunal; Erujin at [56];Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453.
69 I note, however, that in MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66 (MJW), a case concerning an application to the court under s 67 of the CCS Act for the revocation of a protection order, it was pointed out by Mazza J that the doctrine of res judicata does not apply to child welfare proceedings; MJW at [144]. This is because the paramount consideration in such proceedings is the best interests of the child.
70 The doctrine of res judicata is, relevantly, the rule that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action; Jackson v Goldsmith (1950) 81 CLR 446 at 466.
71 However, Mazza J then went on to say that it should not be taken from MJW that parties are at liberty to continually relitigate such proceedings based on the same, or substantially the same, material. He said that where a court settles the question of parental responsibility, it will not usually be in the interests of the child for those proceedings to be relitigated. To do so would be to needlessly introduce into the life of the children uncertainty and instability. Proceedings which in effect reopen the question of parental responsibility require 'material changes in circumstances' to be established; MJW at [145]
72 Whether an order should be varied or revoked will depend upon the individual facts of each case. However, it would be wrong to apply for a revocation or variation of the order without identifying some material change in circumstances; MJW at [146].
73 In these proceedings, like in the proceedings in MJW, the paramount consideration is the best interests of the child and those interests may change from time to time. It is therefore likely that the rule of res judicata also does not apply to these proceedings. However, on the same basis, I consider that the Tribunal has the power to dismiss these proceedings as an abuse of process if it can be shown that the substance of the amended application has previously been determined by the Tribunal and that there has been no material change of circumstances which would warrant a further review.
Has the substance of the amended application been previously determined by the Tribunal?
74 The Tribunal has, on two previous occasions, considered the issue of whether SH should have unsupervised contact with C.
Decision of Eckert J on 21 October 2009
75 On 21 October 2009 her Honour Judge Eckert dismissed SH's application (CCS 1 of 2009) to review a decision of the CEO with respect to certain care planning decisions made in relation to the August 2008 care plan for C, as modified by the care planning decisions in the September 2009 care plan. One of the care planning decisions appealed against was that SH only have supervised contact with C. SH was seeking instead 8 hours unsupervised contact per week with C.
76 Her Honour said:
What concerns me is not allegations, whether they be true or false, of sexual or child abuse, and I am not concerned by whether the depressive illness is current, I am concerned by the diagnosis of ever-present, longterm personality disorder, psychiatric issues, that [SH's psychiatrist] appears to dismiss as not being a valid diagnosis, that seems to [me] to be well reasoned and well supported by a number of well qualified people.
(T: 14-15; 21.10.09)
77 She said that she did not 'place much weight on [SH's psychiatrist's] opinion' (T:13; 21.10.09).
78 Her Honour expressed some sympathy for SH but reminded herself that she should not lose sight of the fact that 'it is not [SH's] interests that I am here to deal with' (T:16; 21.10.09). Rather, she said, SH's interests are the 'last thing' to consider, with C's interests being put first and then those of DH.
79 Her Honour said that '[SH] seems to always have an excuse as to why he is not responsible for his own actions and that worries me with respect to the grandchildren' (T:19; 21.10.09). She said that she viewed SH as litigious and negative and having a tendency to see conspiracy around him. She expressed her view that 'I would be concerned how that will affect his relationship with children'. She said that she considered that these attitudes could 'manifest very negatively with children if [SH] does not get his own way with them'.
80 Her Honour also found that it was valid to rely on the 'old material … insofar as they demonstrate long-term personality disorders that might have an effect on the children' (T:20; 21.10.09).
81 Her Honour stated:
I note that you have been declared a vexatious litigant in the Family Court proceedings and in that court [SH], that does not apply here from what I can see but I would look carefully if any further application was made with respect to the 09 care plan. (T:21; 21.10.09)
She dismissed SH's application.
Decision of Chaney J in 2011
82 In the 2011 decision, Chaney J, the then President of the Tribunal, dismissed another application by SH, this time for review of a decision of the CEO concerning the November 2010 care plan. While the application concerned a new care plan, SH was again seeking increased contact with C, also including unsupervised access.
83 The Tribunal held at [104] that a cautious approach should be taken in light of unresolved concerns about SH and his conduct in relation to his own daughters K and S. The Tribunal concluded at [127] that his relationship with C as her grandfather could be maintained through contact for which her father, DH, is responsible.
84 In the 2011 decision at [99] to [100], Chaney J noted the findings of Judge Eckert in October 2009, particularly her findings with respect to the psychiatric evidence.
85 At [101] Chaney J referred to the then recent developments that had occurred in the Family Court with respect to SH's children and noted that the mother of SH's daughter K had agreed to increased contact.
86 At [103] to [104], Chaney J stated as follows:
Despite SH's desire to revisit the evidence which led to restrictions on his contact with his own children, and the conclusions reached by Judge Eckert in the earlier proceedings in this Tribunal, those findings constitute the background against which decisions in relation to the care plan should be made. As SH was advised at the hearing, these proceedings cannot provide a venue to make collateral attacks on earlier findings in different proceedings. It is, however, appropriate to have regard to circumstances which have changed since the Tribunal's earlier decision in relation to contact provisions concerning SH in the care plan for C. What does appear to have changed is that there has been a gradual relaxation of the limitations on contact between SH and [his daughter] K, and to a slight degree in relation to S. That relaxation, certainly in relation to K, suggests a reduced concern on the part of the Family Court as to the potential impact on K's welfare, or any risk to her by more liberal contact with SH.
There remains, however, a long history of troubling allegations relating to SH and his conduct in relation to his daughters K and S. While it is acknowledged that SH denies inappropriate conduct, that DH does not consider his father to be a risk to C, and that none of the allegations have been definitively established against SH, it remains appropriate to adopt a cautious approach to the question of SH's contact with C.
87 At [105] his Honour stated that the extent of contact with C sought by SH 'demonstrates, in my view, SH's lack of perspective as to an appropriate level of involvement by him in C's life.' Furthermore, his Honour noted that it was important to bear in mind that 'the focus of the best interests of a child under the CCS Act revolves around questions of relationships between a child and its parents.'
88 I conclude that the substance of the current application, namely a review of the refusal by the CEO to allow SH to have unsupervised contact with C, has been previously determined by the Tribunal.
Has there been a material change of circumstances?
89 SH relies on the following factors to support his argument that there has been a change of circumstances:
a) he has remarried and has a wife and child living with him full time;
b) his custody arrangements with respect to his daughter K (who was born on 9 May 2000) have changed;
c) he submits that he has further psychiatric evidence which is relevant to these proceedings; and
d) he has obtained copies of certain documents from the Department, indicating in effect that it is not the view of everyone within the Department that SH is a risk to C.
90 In relation to the first factor, the Department submits that this is irrelevant in respect of the relationship he may have with a grandchild.
91 I agree. It is difficult to see why this has any bearing on the question of whether SH should have unsupervised contact with C. While this may be a change of circumstances, I do not consider that change to be material to the matter under consideration.
92 In relation to the second factor, the Department submits that some evidence of those changed custody arrangements had been before Chaney J when he gave his September 2011 decision. Also, the Department points out that the contact arrangements between SH and his daughter had been agreed to by K's mother. In this case, DH has expressed the view to the Tribunal on a number of occasions that he does not support SH having unsupervised access to C.
93 Again I agree. Those changed custody arrangements with respect to SH's children do not amount to a change of circumstances with respect to this matter. They are based, at least to some extent, on s 66(1) of the Family Court Act 1997 (WA), which provides that children should have the benefit of having both parents involved in their lives, to the maximum extent consistent with the best interests of the child. C is of course SH's grandchild, not one of his children.
94 The custody arrangements with the applicant's daughters were not a matter relied upon by the members of the Tribunal when reaching their earlier decisions. It is clear that the earlier decisions of the Tribunal were based primarily on SH's risk to children and his personality disorders.
95 As to the third factor, at the hearing before me on 19 September 2014, SH said that he had further psychiatric evidence which he said would assist the Tribunal. He then handed up a letter dated 7 March 2013 from the same psychiatrist mentioned by Judge Eckert in her 2009 decision (T:13; 21.10.09). I adjourned the hearing so that I could consider this letter and also to allow SH time to consider whether he wished to or could produce any further evidence of a change of circumstances.
96 The letter on further examination provided a short and unsubstantiated statement that SH is 'a dedicated and committed father'. It went on to say that in the opinion of the author 'it is certainly in the best interests of a child to have a relationship with both parents.'
97 I concluded that this letter provided nothing further in respect of the proceedings and that it related entirely to a Family Court matter involving SH's daughter S. When the Tribunal reconvened on 26 September 2014, the parties were informed of this. It was clear that SH had no further evidence at that time. Although SH stated that he was now willing to undergo an independent psychiatric assessment, I do not consider that to be a relevant material change in circumstances. SH has had ample opportunity to provide further psychiatric evidence if he considers that this would assist his case and to date he has failed to do so. Just what that further assessment would show is, of course, entirely a matter of speculation and it therefore cannot be said that the prospect of a future report constitutes a material change in circumstances.
98 As to the Department's documents, nothing produced to me by SH indicates anything more than the fact that all aspects of C's care planning decisions have been deliberated upon by the relevant members of the Department. The CEO's decision is unaffected by these discussions.
Conclusion
99 I find that the Tribunal has on two occasions since 2009 decided to uphold the CEO's decision that SH is not to have unsupervised contact with C. The three care planning decisions confirmed by the CEO and the subject of the review application all relate to that same issue, namely the refusal to allow SH to have contact with C except under supervision. The subject of this review application is substantially the same as the subject of the reviews which led to the Tribunal's previous determinations.
100 It has not been established before the Tribunal that there has been a material change in circumstances since those decisions were made which would justify hearing again SH's argument that it is in C's best interests for her to spend unsupervised time with him. On the contrary, I consider that it is in the interests of C that this question is closed once and for all so that she has some predictability and consistency in the extent of her contact with her biological family. Continuous reviews of effectively the same care planning decisions for her in my view needlessly introduce uncertainty into her life. I therefore conclude that these proceedings should be dismissed and I will so order.
Costs
101 The Department in its application also seeks an order for costs to be made against the applicants.
102 In respect of costs, the starting point is s 87(1) of the SAT Act. That provides that parties bear their own costs in a proceeding of the Tribunal, unless the Tribunal orders otherwise.
103 Section 87(2) of the SAT Act enables the Tribunal to make an order for the payment by a party of all or any of the costs of another party, but the Tribunal has always taken the approach that it will need a good reason to depart from the general principle in s 87(1) of the SAT Act.
104 The Tribunal has never specified the particular circumstances in which the discretion to award costs will be exercised. It is simply the case that it will do so in appropriate circumstances.
105 In this case, the Department has not attempted to persuade the Tribunal that there are appropriate circumstances in respect of these proceedings and the Tribunal itself cannot readily identify any such circumstances.
106 Accordingly, there will be no order as to costs.
Orders
1. Pursuant to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) the application under CCS 3 of 2013 is dismissed.
I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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