DL v Chief Executive Officer, Department for Child Protection and Family Support

[2017] WASC 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DL -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASC 71

CORAM:   CORBOY J

HEARD:   30 JANUARY 2017

DELIVERED          :   17 MARCH 2017

FILE NO/S:   SJA 1038 of 2016

BETWEEN:   DL

Appellant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent

JW
Second respondent

AY
Third respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE S VOSE

File No  :PER 451 of 2015

Catchwords:

Appeal - Children and Community Services Act 2004 (WA) - Protection proceedings - Application to be joined as a party to protection proceedings - Proper construction of s 147(e) Children and Community Services Act 2004 (WA) - Whether the court retains a discretion - Whether appellant should be joined as a party to protection proceedings.

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA), s 8, s, 44, s 147
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal on ground 1 dismissed
Leave to appeal on ground 2 granted
Appeal allowed
Order made joining appellant as a party to the protection proceedings

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr J F Bennett

Second respondent        :     No appearance

Third respondent           :     No appearance

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

Second respondent        :     No appearance

Third respondent           :     No appearance

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

PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228

CORBOY J: 

Summary

1. CW was born on 22 August 2012.  JW is his mother.  His biological father is unknown.

2. The appellant was in a relationship with JW between 2007 and April 2008 and again, from May 2012 to July 2014.  He was present at the birth of CW and CW lived with the appellant and JW until May 2014.

3. CW was taken into provisional protection and care pursuant to s 37 of the Children and Community Services Act 2004 (WA) (CCS Act) on 10 September 2015. CW has two siblings, OY and SY. They are the children of JW and AY.

4. The children were taken into provisional protection and care after CW was taken by JW to the Emergency Department of Armadale Hospital.  CW presented with extensive bruising to his face and body.  He was subsequently transferred to Princess Margaret Hospital.  Neither the appellant nor AY had any contact with CW at the time that the child was injured. 

5. The respondent applied to the Children's Court for an interim order pursuant to s 133(2)(b) of the CCS Act and a protection order (time-limited) by an application dated 17 September 2015.  An affidavit made in support of that application indicated that the respondent had been in communication with AY regarding the care of OY, SY and CW and that AY had indicated that he was willing to care for the children.

6. The appellant learnt that CW had been taken into provisional care by the respondent in late 2015.  The appellant and his mother contacted the respondent but were informed that they could not be provided with information regarding CW because the appellant was not a party to the protection proceedings.

7. The appellant attended a directions hearing in the respondent's application on 7 January 2016.  He applied to be joined as a party to the proceedings by application dated 17 February 2016.  The respondent opposed the application and it was dismissed by the presiding magistrate.  In effect, his Honour held that there was no purpose in the appellant being joined as he was not the biological father of CW; he had been in a relationship with AW for only a relatively short time; and there was no realistic prospect of the court ordering that he be given custody of CW as that would involve splitting CW from his siblings.  It should be noted that all of the children had been placed in the custody of AY and his mother at the time of the magistrate's decision.

8. The respondent conceded in the appeal that the magistrate had erred by failing to apply the test for the joinder of parties to protection proceedings contained in s 147(e) of the CCS Act (ground 3 of the appellant's proposed grounds of appeal). However, the respondent continued to oppose the appellant being joined as a party to the proceedings and contended that the appellant's appeal should be dismissed.

9. The error conceded by the respondent was an error of law.  Accordingly, the appellant was granted leave to appeal out of time and leave to appeal on ground 3 of his notice of appeal at the first directions hearing in the appeal.  It would have been open to remit the appellant's application to be joined as a party to the protection proceedings to the Children's Court to be determined according to law.  However, the parties submitted that it would be more efficient for this court to determine the application.  I acceded to that proposal and accordingly, deferred the question of leave to appeal on grounds 1 and 2 of the notice of appeal to the hearing of the appeal. 

10. Ground 1 of the appeal alleged that the magistrate took into account some matters that were irrelevant to the determination of the appellant's application having regard to the proper construction of s 147(e). It is not necessary to further consider that ground as it merely reflects the magistrate's failure to apply the statutory test.

11. Ground 2 alleged that the magistrate erred in failing to take into account matters that were relevant to the determination of the application. The matters identified by the appellant raised questions concerning the meaning and effect of s 147(e). I would grant the appellant leave to appeal on the ground and allow the appeal on that ground. However, it should be noted that at least one of the matters specified by the appellant in his notice of appeal was not relevant to the determination of his application on the view that I have tentatively taken on the proper construction of s 147(e).

12. I have concluded that the appellant should be joined as a party to the protection proceedings for the reasons that follow.

The statutory framework - protection proceedings

1. Section 28 of the CCS Act specifies the circumstances in which a child may be in need of protection.  Those circumstances include where the child has suffered or is likely to suffer harm as a result of abuse or neglect or the child's parents being unable to provide adequate care for the child. 

2. Section 37 permits an officer who has been authorised by the respondent or a police officer to take a child into provisional protection and care if the officer suspects, on reasonable grounds, that there is an immediate and substantial risk to the child's wellbeing. The respondent is required to determine whether a child taken into provisional protection and care should be returned to a parent or other person responsible for the child's care or an application for a protection order should be made.

3. Section 44 of the CCS Act prescribes the procedure for making an application for a protection order.  The section obliges the respondent to give a copy of the application to the child, a parent of the child and any other person considered by the respondent to have a direct and significant interest in the wellbeing of the child.  The appellant was not served with the respondent's application.

4. The Children's Court may make a variety of protection orders:  a protection order (supervision); a protection order (time‑limited); a protection order (until 18); and a protection order (special guardianship).  In this case, the respondent sought a protection order (time‑limited) in respect of CW.  The effect of such an order is to give the respondent parental responsibility for a child for the period specified in the order.  A protection order (time‑limited) cannot be made for a period exceeding two years.  That was the period sought by the respondent in respect of CW.  However, the respondent can make a further application to the court or can amend the application to seek, for example, a protection order (until 18).

5. Part 5 of the CCS Act governs protection proceedings.  The respondent is required to provide the court with a document that outlines the proposed arrangements for the wellbeing of the child when the protection order (time‑limited) is made and the court must consider any proposal provided by the respondent before making an order.  The court has power to make interim orders, including orders that the child be returned to, or placed or remain with, a parent of the child; that the respondent make a secure care arrangement in respect of the child; and that the child be placed with a person approved by the court following a report, whether oral or written, from the respondent as to the person's suitability.  The court may also make orders regarding 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 and on any other matter that the court considers appropriate.

6. The expression 'wellbeing of a child' is defined by s 3 of the CCS Act to include the care of the child; the physical, emotional, psychological and educational development of the child; the physical, emotional and psychological health of the child; and the safety of the child. Section 7 provides that in performing a function or exercising a power in the CCS Act, the court must regard the best interests of the child as the paramount consideration. Section 8 specifies a number of matters that must be taken into account in determining what is in the best interests of a child. Those matters include the nature of the child's relationship with his or her parents, siblings and other relatives and with any other people who are significant in the child's life; 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, including separation from any person who is significant in the child's life; and the need for the child to maintain contact with people who are significant in his or her life.

7. Section 145 provides that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.  The proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child's family and are to be conducted, as far as possible, in a way that promotes cooperation and consensus.  The court is not bound by the rules of evidence in determining protection proceedings.

8. Section 147 provides that:

   In protection proceedings each of the following people is a party to the proceedings ‑ 

   (a)the child;

   (b)each parent of the child;

   (c)the CEO [the Chief Executive Officer of the Department for Child Protection and Family Support];

   (d)if the proceedings relate to a protection order (special guardianship) ‑

   (i)the person or persons to whom parental responsibility for the child is proposed to be given under the order; or

   (ii)the person or persons given parental responsibility for the child under the order,

   as the case may be;

   (e)any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.

9. Accordingly, the court is required to form a view as to whether a person, who is not a parent of the child, has a direct and significant interest in the wellbeing of the child in determining whether that person should be joined as a party to the protection proceedings. It should be noted that the requirement specified in s 147(e) is different to the test of whether a person, who is not a relative of the child, should be permitted to have contact with the child (someone who is significant in the child's life).

The grounds of appeal

1. In addition to contending that the magistrate erred by failing to apply the statutory test specified in s 147(e), the appellant alleged that the magistrate took into account irrelevant considerations and failed to have regard to relevant considerations in refusing his application to be joined as a party to the protection proceedings. The irrelevant considerations identified by the appellant highlighted the failure of the magistrate to apply the statutory test. It is not necessary to detail those matters having regard to the concession rightly made by the respondent.

2. The matters that the appellant contended were relevant to the determination of his application, and which were not considered by the magistrate, assisted in identifying the reasons why the appellant maintained that he ought to be made a party to the protection proceedings:

   (a)the appellant had fulfilled a 'father‑like' role to CW and had spent significant time with him for much of CW’s life;

   (b)JW had identified the appellant as CW’s father and had supported the child calling the appellant 'Dad';

   (c)the appellant wanted to be involved in CW's life and had demonstrated a long‑term commitment to CW and the capacity to provide for his needs;

   (d)by virtue of the duration and quality of his relationship with CW, the appellant represented a 'viable placement option' for CW.

This court's jurisdiction

1. Section 147 is located in pt 4 of the CCS Act.  Section 41 and s 42 of the Children's Court of Western Australia Act 1988 (WA) (Children's Court Act) provide for an appeal from a finding, order or decision made by a magistrate under pt 4 of the CCS Act.

2. Section 42 of the Children's Court Act provides that an appeal from a decision made under pt 4 of the CCS Act is to be made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act) as if the appeal was from a decision made by a court of summary jurisdiction. Part 2 of the CA Act is not especially well suited to appeals from orders made under the CCS Act. However, s 8(1) of the CA Act provides that an appeal may be made on several grounds, including that the court made an error of law or fact.

3. Section 14 of the CA Act confers power on this court to make various orders to dispose of an appeal.  Those orders include setting aside or varying the decision of the court below; substituting a decision that should have been made by the court; remitting the case to be dealt with again by the court, with or without orders as to how or by whom the court is to be constituted or as to how the court must deal with the case; and making any other order that this court thinks fit.  The power conferred by each of those alternatives is not unfettered; the powers are to be exercised judicially in the court's appellate jurisdiction.

The evidence in the appeal

1. The appellant commenced his appeal outside the time prescribed by the CA Act.  He made an affidavit in support of an application to extend the time within which to appeal.  The affidavit contained a summary of the reasons why he contended he ought to have been joined as a party to the protection proceedings.  In addition to the matters identified in his appeal notice, the appellant stated that:

   (a)He had known JW since 1995 and she had resided with himself and his mother between 2003 and 2007.  His mother had provided significant financial and emotional support for JW during that period.

   (b)The appellant's mother had purchased a house to provide accommodation for the appellant and JW after they had commenced to live together in a relationship.  The house was located close to a school with the future education needs of OY, SY and CW in mind.

   (c)CW had lived with the appellant and JW for a period of 21 months immediately after he was born.  The appellant had treated CW as his son and engaged in normal parenting activities with CW.  Further, the appellant had remained involved in the day‑to‑day care of CW (and OY and SY) after the relationship with JW had ended.  The annexures to his affidavit indicated that JW was still communicating with the appellant or the appellant's mother about matters such as minding CW up to about mid‑February 2015. 

2. The appellant also stated that he had intended to ask the Children's Court to make a special guardianship order in his favour pursuant to s 60 of the CCS Act had he been joined as a party to the protection proceedings. 

3. The respondent filed an affidavit made by Ms Nogueria, who is a child protection worker for the Department for Child Protection and Family Support (the Department).  She is the case manager for CW.

4. Ms Nogueria's affidavit was in three parts.  The first part provided information concerning CW's placements since he had been taken into provisional protection and care.  The second part concerned contacts between the Department and the appellant and the third part responded to affidavits that the appellant and his mother had made and which had been filed in the Children's Court.

5. As to CW's placements, Ms Nogueria advised that CW had been placed with three carers after he had been taken into provisional protection and care.  He had then been placed in January 2016 with AY and AY's mother.  They also had the care of OY and SY.  However, AY had advised in December 2016 that he could not take care of CW in the long term.  Accordingly, in January 2017 arrangements had been made for transitioning the care of CW to Departmental foster carers.

6. The effect of Ms Nogueria's statements in response to the affidavits filed by the appellant and his mother in the Children's Court was to contest evidence that CW referred to the appellant as his 'real Dad' or referred to the appellant as 'Dad' to the exclusion of others in the child's life.  Ms Nogueria stated that she had been informed by JW that CW had referred to other men as 'Dad'.

7. The respondent also filed an affidavit made by Ms Rostant, a psychologist employed by the Department.  Ms Rostant wrote a report in April 2016 in which she concluded that contact between the appellant and CW at that time would not be in CW's best interests and was not recommended by her.  The affidavit explained the basis for Ms Rostant's opinion.

Section 147(e)

1. The meaning of s 147(e) was considered by Jenkins J in PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228. Her Honour noted that there was no statutory definition of the expression 'direct and significant interest in the wellbeing of the child' except for the inclusive definition of the term 'wellbeing' provided by s 3 of the Act. After referring to dictionary definitions of the words 'direct' and 'significant', her Honour concluded that Parliament had intended that a person's interest in the wellbeing of a child for the purpose of s 147(e) 'must be direct in the sense that they must immediately, and without any intermediary, have an interest in the care, development, health and safety of the child' and that the direct interest must be an 'important interest' [62] ‑ [63].

2. Her Honour further observed that:

   I accept the submission of the first respondent that in exercising the discretion under s 147(e) the court should take into account a variety of matters, including the length of time that the person seeking to be joined has had a relationship or an interest in the wellbeing of the child, the quality of the relationship or the interest in the wellbeing of the child and the history of that relationship or interest. It goes without saying that the Court must also consider whether the interest is a direct interest or not.

   I also accept the first respondent's view that in exercising its discretion the court should have regard to the nature of the application before it and to whether the person's interest in the wellbeing of the child is significant in the sense that it relates to the matters that will be under consideration by the court.  Other than that, as I have said, I would not seek to lay down any firm rules in respect to the exercise of the discretion.  Each application for joinder must be decided on its merits [65] ‑ [66].

1. The joinder of a party to proceedings ordinarily involves the exercise of an interlocutory discretion. Although it is not necessary to finally determine the issue in this appeal, it may be that the power conferred by s 147(e) is not properly characterised as discretionary in nature ‑ at least, in the sense that the court retains a residual discretion to refuse to join a person as a party to protection proceedings notwithstanding a finding that the person had a direct and significant interest in the wellbeing of the child. There are several reasons why I am inclined to that view.

2. First, s 147(e) requires the court to form an opinion rather than to exercise a discretion.

3. Second, s 147 provides that each of the persons specified in the section 'is' a party to the proceedings.  Accordingly, a person who the court considers has a direct and significant interest in the wellbeing of the child is a party to the proceedings.  The use of the word 'is' reflects the mandatory rather than discretionary effect of s 147(a) ‑ (d). 

4. Third, the persons specified in pars (a) to (d) of s 147 are deemed to be parties to the protection proceedings principally by reason of their relationship with the child and without any further consideration of the matters identified in s 8 of the CCS Act. That suggests that Parliament considered that the best interests of the child are served by deeming the persons specified in those paragraphs to be parties regardless of the matters specified in s 8. Section 147(e) is also concerned with the relationship between the applicant and the child. It is not apparent why the court should retain a discretion, to be exercised by reference to the matters stated in s 8, once it has been found that the applicant has a direct and significant interest in the wellbeing of the child. No distinction is made between s 147(a) ‑ (d) and s 147(e) other than that the court is required to form an opinion for the purpose of s 147(e).

5. Fourth, s 147 is concerned with who should be a party to protection proceedings and not with what orders, interim or final, should or might be made in the proceedings. It is difficult to see how the matters referred to in s 8 could properly persuade a court to refuse to join a person who has been found to have a direct and significant interest in the wellbeing of the child. Conversely, consideration of the matters specified in s 8 would necessarily divert the court away from the issue raised by s 147(e) (whether a person 'is' a party to the protection proceedings because he or she has a direct and significant interest in the wellbeing of the child) to the substantive issue of what is in the best interests of the child in determining the proceedings ‑ that is, what orders could or ought to be made on the respondent's application.

6. The court has a wide power to make interim orders, including in respect of matters such as contact with the child. Consequently, a person with a direct and significant interest in the wellbeing of the child may be directly affected by an order made by the court. Further, the nature of their interest in the wellbeing of the child means that their views ought to be received by the court even if they are not the subject of an order. In my view, that reasoning would apply even if the court retains a discretion under s 147(e) to refuse to join a person who has established a direct and significant interest in the wellbeing of the child.

The parties' approach

1. The evidence filed by the parties in the appeal was not confined solely to the question of whether the appellant had a direct and significant interest in the wellbeing of CW.  Rather, the evidence descended into the issue of whether placing CW in the care of the appellant would be in the best interests of the child. 

2. The starting point for that kind of evidence was the statement by the appellant that he would seek a protection order (special guardianship) if he was joined as a party to the protection proceedings.  The respondent filed Ms Rostant's affidavit concerning her opinion on whether it was desirable for the appellant to have contact with CW at a time when the child was in the care of AY and AY's mother.  The appellant filed material in response to that affidavit and other matters raised by the affidavit of Ms Nogueria that argued why he should be permitted to have the care of CW. 

3. With respect, evidence of this kind from both parties came perilously close to inviting the court to replicate the mistake that had been made by the magistrate.  At best, it was evidence that might have fallen within the scope of the comment by Jenkins J in PR that the court may have regard to whether the applicant’s interest under s 147(e) is significant 'in the sense that it relates to the matters that will be under consideration by the court'.

4. It is possible that her Honour contemplated a very broad interpretation being given to concept of 'matters that will be under consideration by the court'. However, as I have explained, in my view s 147(e) only requires the applicant to demonstrate a significant interest in the wellbeing of the child. That will, in practical terms, equate to a significant interest in what is determined in the protection proceedings. However, I do not consider that the applicant is required to demonstrate that he or she has an interest in obtaining a particular order in proceedings or that the nature of their interest is such that they are likely to achieve a particular outcome. Accordingly, evidence concerning the possible outcome of protection proceedings is irrelevant to the question of whether a person should be joined as a party on the interpretation of s 147(e) that I favour.

5. It is possible to form a tentative view on the likelihood of a party being granted relief of a particular kind in resolving an interlocutory application in civil proceedings.  The parties define the issues to be determined in the action and the relief that is claimed. 

6. Protection proceedings are entirely different in nature.  The circumstances relevant to determining what is in the best interests of the child may change as the proceedings unfold.  A person may emerge as the one best suited to care for the child even though that was not apparent when the proceedings were commenced.  It may be desirable to make an interim order that was not anticipated at some earlier time in the proceedings.  By way of example, there has been a significant change in CW's circumstances in the course of these proceedings ‑ he is no longer under the care of AY and AY's mother.  Consequently, a report made in mid‑2016 that emphasised the desirability of CW being left to form a relationship with AY would no longer provide much assistance in determining what might be in the best interests of CW. 

7. No doubt the respondent is concerned to ensure that protection proceedings do not become a forum for disputes between family members and other persons who may have had some involvement with a child and that the efficiency of the proceedings is not impaired by intermeddling. That is a proper concern but it is addressed by the threshold requirement that an applicant under s 147(e) is required to demonstrate a direct and significant interest in the wellbeing of the child.

Disposition of the appeal

1. CW was placed in provisional protection and care in early September 2015.  The appellant was not advised that this had occurred and it is apparent that the Department has sought to minimise or exclude the appellant's contact with CW.  Ms Rostant's affidavit indicates that this was a considered decision made according to the Department's view of CW's best interests.  It is not difficult to understand the reasoning behind Ms Rostant's opinion and the Department's view.  However, the respondent cannot contend that the appellant no longer has a direct and significant interest in the wellbeing of the child because of the passage of time since September 2015.

2. The evidence relied on by the appellant indicates that he was present at the birth of CW and that he assumed parental responsibility for CW following the child's birth, treating the child as his own.  He continued to have significant contact with CW after the relationship between himself and JW ended.  That continued until February 2015.  It appears that he continued to regard himself as CW's father after the relationship with JW concluded ‑ the text messages attached to his affidavit are of a kind that would be routinely exchanged between estranged parents who share the care of a child. 

3. In my view, the appellant's evidence establishes that he has a direct interest in the wellbeing of CW and that the interest was significant at the time when the protection proceedings were commenced.  It is not necessary to decide the time at which the nature of an applicant's interest in the wellbeing of a child should be assessed.  However, that is the appropriate time in the circumstances of this matter given what occurred after CW was taken into provisional protection and care and the fact that the appellant was not served with the respondent's application.

4. I consider that the appellant should be joined as a party to the protection proceedings even if the court retains a discretion having regard to the matters specified in s 8 of the CCS Act. There is no suggestion that CW suffered any harm while in the appellant’s care; the appellant apparently recognises the need to foster the relationship between CW and OY and SY; the appellant is also apparently supportive of JW and her role as CW's mother; in my view, the appellant was significant in CW's life, at least until September 2015 and it may be that, at the very least, the court could conclude that the appellant is someone with whom CW should have contact.

5. The mere recitation of those matters illustrates the point I have endeavoured to make ‑ they relate much more to the disposition of the protection proceedings than to whether the appellant should be joined as a party.  It should be emphasised, to avoid any misunderstanding, that I have not made any finding that is relevant to the determination of any of the substantive issues raised or likely to be raised in the protection proceedings and no observation made in these reasons should be taken as bearing upon the resolution of those issues.