Du Preez v Bullick

[2000] WASCA 347

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DU PREEZ -v- BULLICK [2000] WASCA 347

CORAM:   MILLER J

HEARD:   27 SEPTEMBER 2000

DELIVERED          :   15 NOVEMBER 2000

FILE NO/S:   SJA 1041 of 2000

BETWEEN:   GEOFFREY DU PREEZ

Appellant

AND

FRANCES JOY BULLICK
Respondent

Catchwords:

Children - Order that children committed to care of Department - Declaration that children in need of care and protection - Whether findings sufficient to justify - Nature of proceedings - Standard of proof - Weight to be given to out-of-court statement - Child Welfare Act 1947, s 30 - Turns on own facts

Legislation:

Child Welfare Act 1947 (WA), s 30

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Ms R M Parks

Respondent:     Mr S A Walker

Solicitors:

Appellant:     E J Myers

Respondent:     Director General of the Department of Family & Children's Services

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

Currie v Mannell & Anor, unreported; SCt of WA; Library No 8063; 14 February 1990

Devries v Australian National Railways Commission & Anor (1993) 177 CLR 472

House v The King (1936) 55 CLR 499

In the matter of J (A Child) (1992) 8 WAR 561

J v Lieschke (1987) 162 CLR 447

Norbis v Norbis (1986) 65 ALR 12

State Rail Authority of New South Wales v Earthline (1999) 160 ALR 588

Case(s) also cited:

Barnett and "N1" v "N2", unreported; SCt of WA; Library No 950461; 30 August 1995

Comcare Australia v Lees (1997) 151 ALR 647

Director General for Family and Children's Services v E and K, unreported; SCt of WA; Library No 980380; 17 July 1998

In KLR v Director-General, Department for Community Services; SCt of WA; Library No 920475; 11 September 1992

In the Matter of "A", unreported; SCt of WA; Library No 920698; 22 December 1992

Nairn v O'Reilly (1986) 11 Fam LR 472

QBE Insurance Ltd v Moltoni Corporation Pty Ltd [2000] WASCA 82

Warren v Coombes (1979) 142 CLR 531

1. MILLER J: This is an appeal from a decision of Mr N C Pillay SM delivered in the Children's Court of Western Australia sitting at Perth. That decision was made in respect of an application for a declaration that two children were in need of care and protection and for orders under s 30 of the Child Welfare Act 1947.  The application had been brought by the respondent for and on behalf of the Director General of the Department of Family and Children's Services and was for a declaration that "F" and "A", two girls born respectively on 11 June 1985 and 23 August 1987 were in need of care and protection.  By the application, the respondent sought an order that they be committed to the care of the respondent for a period of two years.  At the conclusion of hearing the learned Magistrate granted the application and made a declaration that the children were in need of care and protection.  They were committed to the care of the respondent for two years.

2. By order of Ipp J made on 3 April 2000 the appellant was given leave to appeal from the decision of the learned Magistrate on a number of detailed grounds.  They are as follows:

   "(a)The learned Magistrate erred in law in finding that the applicant's personality disorder warranted the making of a declaration that the children are in need of care and protection because he did not give sufficient weight to the psychiatrist's opinion that:

   (i)the applicant is a 'good enough parent' and his personality disorder does not necessarily diminish his ability to parent;

   (ii)other persons in the community exhibit narcissistic personality disorder traits and can parent adequately;

   (iii)the applicant's difficulties in adult relationships do not affect his relationship with his children.

   (b)The learned Magistrate erred in law in placing undue weight upon the Family Court proceedings which may follow the dismissal of the care and protection application because:

   (i)conflict between parents, no matter how serious and persistent, is not sufficient reason in law to warrant a care and protection declaration;

   (ii)the weight of evidence indicates that most of the conflict is generated by the mother;

   (iii)the applicant has taken steps to diminish the conflict by not residing in close proximity to the mother and by refusing to provide her with any telephone access.

   (c)The learned Magistrate erred in placing undue weight on the applicant's inability to recognise the boundaries of acceptable behaviour between adults and adults and children with respect to sexual matters and insufficient weight on his own findings that there is no evidence of the applicant having sexually abused his children or that the children are at risk of sexual abuse by the applicant.

   (d)The learned Magistrate erred in placing undue weight on the applicant's inability to change in the face of evidence to the contrary particularly that of the psychotherapist Prema Jansen who said that the applicant has been responsive to his psychotherapy sessions.

   (e)The learned Magistrate erred in law in finding that the applicant's personality disorder warranted the making of a declaration that the children are in need of care and protection because he gave undue weight to the psychiatrist's diagnosis of the applicant's personality dysfunction when the psychiatrist based part of his opinion on evidence contained in the Family and Children's Service files that was hearsay and/or inaccurate."

3. Before dealing with those grounds it is convenient to refer to the provisions of s 30(1) of the Child Welfare Act, which provide that a court may, upon the hearing of an application to declare a child in need of care and protection, make such a declaration and order that until a child attains the age of 18 years or for such shorter period as the court thinks appropriate, commit the child to the care of the department or order that the child be placed under the control of the department. Section 30(3) provides as follows:

   "(3)In relation to any application for a declaration that a child is in need of care and protection, or on any complaint that a child is a habitual truant, -

   (a)the court shall admit in evidence any statement, whether oral or otherwise, voluntarily expressed or necessarily implied and whether made in the presence of a party to those proceedings or not; and

   (b)the child, the parents and any guardian of the child, and any person who is alleged to have contributed by action or neglect towards the need of the child for care and protection, shall be deemed to be parties to the proceedings."

4. Pursuant to this provision the learned Magistrate accepted in evidence a signed statement of the child "F" which was tendered by her counsel at the hearing of the application.  His Worship observed that the statement contained "a number of mature observations" and in his reasons quoted the following passages.

   "I don't really care where I live, so long as all the things I want to do and need to do like school and music are provided for.

   At the moment I think it is best to stay in foster care until all the things that mum and dad need to do are sorted out.

   …

   I am worried that if I live with mum or dad at the moment, these things won't be able to happen.  Before when I wanted to do piano lessons and other things, mum and dad have not been able to agree on who would pay for it and I have not been able to do what I wanted to do.  The same has happened to A.

   Neither mum nor dad have a car, which makes it difficult for them to take us places.

   Mum and dad rarely listen to what I have to say because they are too busy with their own problems, including the way they feel about each other."

5. At the conclusion of his reasons the learned Magistrate made specific reference to the written statement of "F", and reached the following conclusion:

   "I refer to F's statement where she quite clearly states that Mum and Dad have to solve their problems.  She expressed a desire to maintain the status quo.  Whilst I am not bound to give effect to her wishes, I take cognisance of them.

   I have come to the view independently of F that given the level of conflict in the past and the parents disposition, this will no doubt put further conflict between the parties and despite any legal conclusion of any Family Court battle the conflict will continue.

   I therefore need to protect the children from such an occurrence.  The children are at risk.  The Application must succeed and is now granted.  I therefore make a declaration that the children are in need of care and protection.  The children will be committed to the care of the Applicant for two years by which time F will be at least 16 years of age and A 14.5 years of age.  By that time I expect that the parents would have made some inroads into resolving their individual problems and the resultant conflict."

6. Although the grounds of appeal did not in terms contest the learned Magistrate's reliance upon the written statement of "F", counsel for the appellant was critical of the emphasis placed by the learned Magistrate's on it, contending that although "cognisance" was taken of the statement, the learned Magistrate did not appear to have taken into account various other statements, including transcripts of interviews between "F" and Fiona Stuart; conversations between "F" and departmental officers and other people; and a Family Report of Fiona Stuart.  All of these were exhibits tendered at the hearing.  It was also submitted that evidence of out‑of‑court statements should be considered carefully before reliance is placed upon them, reference being made to the observations of Murray J in In the matter of J (A Child) (1992) 8 WAR 561 at 568 where his Honour said in relation to evidence of a 12‑year‑old child being "relayed to the court by others":

   "That evidence was admitted under the Child Welfare Act, s 30(3)(a) which provides that in such proceedings:

   'the court shall admit in evidence any statement, whether oral or otherwise, voluntarily expressed or necessarily implied and whether made in the presence of a party to those proceedings or not.'

   In other words, without in the context of these reasons considering the entire meaning of that provision which is rather oddly worded, it is clear that it is designed to secure the admissibility of hearsay evidence of out of court statements, and particularly by the child in respect of whom the application is brought.

   The provision, however, does no more than secure the admissibility of material which, in such proceedings without statutory provision, was always regarded as material which the court might receive in an appropriate case.  The section puts that matter beyond doubt, but says nothing about the weight which is to be attached to such evidence.  The question of the weight of the evidence is of course a matter of some substance when it is appreciated that the evidence is being admitted, not just as direct evidence of the utterance made, but as hearsay evidence of the truth of the statement made:  see Taylor v L; Ex parte L (supra) (at 713‑714) and see C v Minister of Community Welfare (supra) (at 307).  In Nairn v O'Reilly (supra) (at 477), Franklyn J said:

   'What weight is given to evidence so admitted is however a matter which must be then assessed by the court and in that regard the section does not absolve the court from the application of the normal requirements of corroboration in cases where corroboration is required, or from the other considerations which apply to evidence when admitted, save to the extent that any such consideration is no longer relevant by virtue of the terms of the subsection.'

   It is clear that in the circumstances which I have described above, the evidence of the out of court statements by J was to be considered with great care before any substantial reliance was placed upon it."

7. It must of course be accepted that evidence of out‑of‑court statements is to be considered with great care before substantial reliance is placed upon such statements.  However, accepting this, it was in my view entirely open to the learned Magistrate to "take cognisance" of what he described as the clear statement of "F" that until her parents had solved their problems she desired to maintain the status quo, that is, to remain in the care of her current care giver, one Sue Taylor.  "F" 's sister "A", who is in the same care, advised the learned Magistrate (through counsel) that she simply wished to be with her sister "F", but otherwise had no particular views in relation to the subject matter of the application.

8. I cannot accept that the learned Magistrate failed to take into account the various reports and interviews which otherwise existed in relation to "F", and which were tendered during the proceedings.  His Worship was not obliged to analyse and dissect each of those documents, and was entitled (as he did) to place particular emphasis upon what appears to have been the most recent statement of "F", in which her views about the most desirable course for her future were eloquently expressed.  I find no error at all in the learned Magistrate placing the reliance he did upon the statement.

9. Although counsel for the appellant pointed to inconsistencies between "F" 's most recent statement, and earlier statements she had made (for example ex A6, where she stated she wishes to be with her father; and ex RF26 where she again expressed that wish), the learned Magistrate was entitled to place most reliance on the more recent statement, particularly as it came several months after the earlier expressions of desire to be with her father.

10. The general principles applicable to applications for care and protection declarations are set out in J v Lieschke (1987) 162 CLR 447. In that case the High Court was considering the nature of proceedings before a Magistrate relating to a "neglected child" within the meaning of s 72 of the Child Welfare Act 1939(NSW). The proceedings were similar to those which may be brought under s 30 of the Child Welfare Act 1947 (WA).  Brennan J (at 458) set out these guiding principles for such applications:

    "There is a natural reciprocity between the duty and authority of parents with respect to the nurturing, control and protection of their child and the child's rights and its interests in being nurtured, controlled and protected.  The natural reciprocity between the interests of parents and child means that both the parents and the child have an interest in proceedings leading to the exercise of a power which is apt to affect the relationship between them.  As a parent holds his or her authority over a child primarily for the benefit of the child, parental authority is to be regarded more as a trust than as a power, but that is not to say that parental duty and authority are burdens of which parents can be relieved against their wishes and without their being heard when it is practicable to hear them.  The natural parental right to discharge parental duties and to exercise parental authority cannot be taken away without giving the parents an opportunity to be heard where it is practicable to do so."

11. Similar observations were made by Deane J, who (at 462 ‑ 463) said:

    "In proceedings such as those involved in the present case, the interests of the child or children involved are paramount.  The possible consequences to a parent, even an 'unimpeachable' parent (see J v C), of being deprived of custody of an infant child by an order of a court will be outweighed by the paramount interests of the child in a case where there is clear overall conflict between them.  Those possible consequences to the parent, which may be emotionally, and even physically, devastating, are not however irrelevant to the factual issues and considerations involved in such proceedings or only relevant to the extent that there is coincidence or reciprocity between the interests of the parents and the interests of the child.  Nor is the interest of the parents in such proceedings merely indirect or derivative in its nature.  To the contrary, such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the natural guardians of an infant child.  True it is that the rights and authority of parents have been described as 'often illusory' and have been correctly  compared to the rights and authority of a trustee (see eg the Report by Justice, the British Section of the International Commission of Jurists, Parental Rights & Duties and Custody Suits (1975), pp 6-7; Dingwall, Eekelaar and Murray, The Protection of Children (1983), p 224) in that they are to be exercised 'for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education' (United States v Green, Goldstein, Freud and Solnit, Before the Best Interests of the Child (1979)) and in that they are susceptible of being overriden or supplanted by the courts either in the exercise of statutory jurisdiction or 'for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae':  per Lord Cottenham L C in In re Spence, cited by Cardozo J in Finlay v Finlay.  Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a trust for the benefit of the child, in terms of the right of both parent and child to the integrity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognized as fundamental (see, eg, Universal Declaration of Human Rights, Arts 12, 16, 25(2) and 36(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v Conn and Alsager v  District Court of Polk County, Iowa).  They have deep roots in the common law."

    Whilst therefore the rights of parents are fundamental and critical to the determination of such proceedings, it nevertheless remains the case that the interests of the children remain paramount.

12. It will be seen that J v Lieschke (supra) was primarily concerned with the right of parents to be heard on every issue of fact relevant to a decision affecting the interests of parents in such cases.  In general terms, however, the principles expressed by Brennan and Deane JJ are applicable to the present proceedings.  In these proceedings it must be said that the appellant was given every opportunity to be heard, as was the mother of the children who participated in the proceedings through counsel but gave no evidence.

13. I accept the submissions of counsel for the appellant that before an order could be made by the learned Magistrate he needed to be satisfied "to a relatively high degree" of the facts upon which any order was to be grounded.  It was so held in In the matter of J (A Child) (supra) where Murray J (at 566) made these observations:

    "Because these are civil proceedings, the standard of proof to be applied will, however, be the civil standard of proof upon the balance of probabilities and not the criminal standard of proof beyond a reasonable doubt.  But it has also often been said that having regard to the seriousness of the factual allegations in such cases, the application of a standard of proof upon the balance of probabilities will often require evidence of relatively high persuasive force, leading to the court being satisfied to a relatively high degree of the facts upon which the court's declaration is to be grounded."

14. Although in the instant case the learned Magistrate made no specific reference to the question of standard of proof, there is nothing to indicate that his Worship was not alive to that question.  The lengthy reasons of the learned Magistrate indicate a careful weighing of the evidence and a conclusion which reflects application of the civil standard of proof.  His Worship must have appreciated the need to be satisfied to a relatively high degree of the facts upon which the order of the court was made.  In any event, there is no specific ground of appeal which asserts that the learned Magistrate failed to apply the appropriate standard of proof.

1. The first ground of appeal challenges the learned Magistrate's conclusion that the personality disorder of the appellant warranted the making of the order.  It contends that the learned Magistrate failed to give sufficient weight to certain aspects of the opinion expressed by the psychiatrist, Dr R N Main, particularly the general view of the psychiatrist that the appellant, notwithstanding problems that he had, was capable of acting adequately as a parent to the children. 

2. It was Dr Main's evidence that the appellant suffered from a narcissistic character pathology, the essence of which was that the appellant indicated features of grandiose self‑importance.  This was a pattern which had been a dominant feature of his life.  One of the problems manifested by his personality structure was a limited ability to emotionally attune to the views of others.  The psychiatrist was concerned as to whether the appellant had a pattern of difficulty in empathising with his children's needs.  As to the future effects of the disorder, Dr Main had this to say:

   "In your final paragraph in the most recent report you talk about his motivation to change.  If he does indeed have this disorder, is it something that he will grow out of if he seeks some sort of counselling or treatment? --- Well, that's two separate things.  He either grows out of it, which I assume means he doesn't need treatment for it, or he gets treatment and that helps him to modify his character.  The evidence for people growing out of this is not particularly strong, in that perhaps people with this type of character pathology don't age very well.  I think I made some comments about that.  But there can certainly be a mellowing of a lot of character types with age.  The issue about whether psychotherapy will speed that process is a little bit more difficult to decide on, in that this form of psychotherapy is certainly something which can speed the process, but there's no absolute guarantee of that occurring."

   MS PARKS:  Why do you ---?--- not a --- sorry.

   Why do you say that you've got some concerns about his motivation to change? --- Mainly because I don't think Mr Duprey would see that this is a pathological state.  I don't think that he would concede that if he wasn't in this process, for example, that he needed to go and seek psychotherapy for his character.  In fact, I think he'd be more inclined to say that his character makes his life happier rather than not."

3. It is true that Dr Main conceded that the character pathology of the appellant did not necessarily diminish his capacity to adequately parent his children, but the doctor qualified that statement by saying:

   "But this is one of the issues about how good a parent does Mr Duprey have to be.

   Yes? --- I think this is a common scenario, that, you know, I guess I deal daily with people who I would say are not the best parents, but it's an issue in my mind about whether they're good enough.  And that's the point that I was alluding to in my comment.

   So is he good enough? --- I'd say he's good enough.  Yes.

   But he's not the perfect parent, like none of us are? --- Correct.  And I hope that I've created an impression in my report that --- because I've certainly been fairly careful to say that I couldn't sustain the fact that he was necessarily going to be --- I think I talked about acts of omission rather than commission.

   I think that was in terms of the safety issue, wasn't it? --- Yes.

   So you don't see the children as being unsafe in this care? --- I couldn't find any evidence to support that they would be, from my interviews or even from the information provided to me by the third parties."

4. The following passage is also important:

   "And is Mr Duprey really any different from every other parent? --- By degree, perhaps he is.

   Perhaps he is? --- But by basic needs perhaps he's not.  And this seems to be the core of the issue.  How good a parent does he need to be?"

5. Great reliance was placed by counsel for the appellant upon Dr Main's concession that there was nothing to suggest that the children were unsafe in the care of the appellant.  It was put that there was evidence (which there was) that other persons in the community exhibit narcissistic personality disorder traits and can parent adequately.  However, the learned Magistrate clearly took into account the evidence in this regard.  He accepted that the appellant loved his children and genuinely wished to care for them and that he had expressed a willingness to change his behaviour, but he quoted a passage from a report of Dr Main dated 26 November 1999 to the following effect:

   "In motivated, psychologically minded subjects, insight oriented dynamic psychotherapy has been shown to improve the outcome of persons suffering from narcissistic personality disorder.  I am not aware that this form of therapy is available in Bunbury.  I also have doubts as to whether the Second Respondent would be a candidate for this work, primarily because of my concerns about his motivation to change.  Alternate counselling of a more supportive nature may assist the Second Respondent at times of turmoil or crises.  I do not think that psychotropic medications are indicated for his condition."

6. Other important passages from the report of 26 November 1999, are as follows:

   "1.Mr Du Preez's character pathology does not necessarily diminish his ability to adequately parent his children.  Clearly this is a subjective judgement, where the most important issue is perhaps the adequacy of that parenting.  In this respect people with narcissistic personality may be able to adequately parent children, particularly in their younger years.  There may be some difficulties in mid‑life, or older age, when a parent's role is perhaps more related to the vicarious enjoyment of the success of their offspring.  When the children are younger, their dependency on their father may be all the motivation that is needed to sustain Mr Du Preez.

   2.Mr Du Preez's lesser ability to attune to his children's needs is most likely to manifest in his capacity to foster their independence from him.  It may also be evidenced by the difficulties he has already experienced in the negotiations over the custody and access arrangements for the children.  In this respect the children's needs are primarily for consistent care and a secure and nurturing physical and emotional environment.  It is possible that Mr Du Preez's lesser ability to attune to these needs restricts his insight into the effects of this prolonged conflict over the custody of the children.

   3.I have thought at some length about the issue of whether Mr Du Preez's erratic behaviour has consequences in relation to him being able to safely care for his children.  In this respect I could not find any convincing evidence that this problem does necessarily effect the safety of children in his care.  It is my opinion that issues of safety are perhaps more difficult to identify compared to issues of the provision of a nurturing parenting experience (ie problem of omission rather than commission).

   4.Mr Du Preez's tendency towards exploitation again seems to be primarily within adult relationships.  As such I think that this is of lesser significance for the safe care of his children."

   It will be seen that Dr Main was stressing the need for the children to have "consistent care and a secure nurturing physical and emotional environment".  He was concerned as to whether the appellant could give this.  The learned Magistrate's conclusion was that Dr Main's assessment, together with the appellant's continued attempts at reducing or denying blame, led to a conclusion that he was "intransigent in the short term".  Further, he had little insight into the effect of his actions on other people. 

7. Although in the end the learned Magistrate's conclusion was primarily based upon the disposition towards conflict of each of the appellant and his former wife, and the effect of that conflict upon the children (evidenced by the statement of the child "F"), his Worship was clearly influenced by the evidence of Dr Main as to the limitations (my emphasis) upon the capacity of the appellant to act in every way as a proper parent to the children.  True it was that Dr Main had indicated that the appellant would be a "good enough parent" but that was by no means the end of the matter.  The learned Magistrate was entitled to take into account the totality of the evidence, including the testimony of the various witnesses whose evidence was summarised in the extensive reasons for judgment, which evidence raised serious questions about the behaviour of the appellant and his suitability generally as a parent.  It is unnecessary to relate that evidence, but the conclusion reached by the learned Magistrate about it was as follows:

   "When these incidences are all drawn together, they do paint a picture of a person who quite clearly does have a fixation on sexual matters; he has an inability to recognise boundaries of acceptable behaviour between adults and between adults and children.  His conversations with both Krystal and F were totally inappropriate.  His letter to Kim Radford was totally inappropriate and offensive.  His suggestions to Darlene Inskter were abhorrent.  His involvement in the male massage industry can only draw the necessary inference that it was in furtherance of his sexual psyche."

8. In my view, the evidence fully supported the conclusion reached by the learned Magistrate, and that conclusion in itself raised doubts in relation to the essential character of the appellant as a parent.  I am therefore unable to accept that there is any substance in the first ground of appeal.

9. The second ground of appeal contends that the learned Magistrate erred in law by placing undue weight upon the Family Court proceedings which might follow the application for a care and protection order.  The only specific reference by the learned Magistrate to the institution of Family Court proceedings for residency orders was in the context of his observation that the appellant now proposed to take the two girls to Bunbury, where he had inquired as to the possibility of them attending school and piano, organ and music lessons.  He had indicated to the court that Bunbury was an ideal place for his children to live and be educated and had undertaken to provide "well defined access" to the girls' mother.  His Worship then added "If the application is not granted he would immediately institute proceedings in the Family Court for residency orders". 

10. At the conclusion of his reasons the learned Magistrate said in relation to the institution of proceedings in the Family Court:

    "The First and Second Respondents are both disposed towards conflict by their very personalities.  If the application were not granted, there would be immediate conflict because action will be instituted by the Second Respondent in the Family Court.  Notwithstanding the geographical separation, conflict will most definitely follow and likely to be drawn out as history has demonstrated."

    I cannot accept that by these references the learned Magistrate placed undue weight upon Family Court proceedings which might follow if the application was not granted.

11. The appellant complains that the learned Magistrate placed too much weight on the conflict between the second respondent and his former wife and ignored evidence that

    (a)the conflict was one‑sided, emanating mainly from the (former) wife;

    (b)the appellant had not contested the residence application of the (former) wife in the Family Court in July 1997 and had thereby avoided a protracted conflict situation;

    (c)the appellant had deliberately distanced himself from the conflict by shifting to Bunbury;

    (d)the appellant was willing to put into place strategies to minimise contact with the (former) wife alone sustained the conflict even after the appellant moved to Bunbury.

12. However, the history of the relationship between the appellant and his former wife, set out in detail by the learned Magistrate early in his reasons, fully justified in my view the conclusions that the learned Magistrate reached about "conflict".  The parties had married in May 1978 and separated in August 1988.  After the separation, proceedings were commenced in the Family Court, and a consent order was made in March 1989.  Despite that order, there was conflict between the parties in a relationship which was referred to by Anderson J in the Family Court as "a particularly stormy one".  This quotation forms part of the learned Magistrate's reasons.  The parties stayed out of the Family Court until September 1993 when the respondent made an application which culminated in a decision in April 1994, pursuant to which the appellant was given guardianship and custody of the two girls and one other child, with reasonable access to the former wife.  Thereafter, the children resided with the appellant on a farm at Gidgegannup, but there were continued problems between their father and mother, with the mother ignoring court orders, constantly interfering with care of the children, turning up unannounced at the farm, ringing unexpectedly, visiting the school outside access times and entering the farm house in breach of a restraining order the appellant had obtained. 

13. In 1995 the appellant moved to Ocean Reef with the three children, but again there was interference with the children's emotional welfare by the mother.  An arrangement was then reached between the parties that there would be shared residence with the children and that caused stability for some six months leading to a variation in the Family Court order in May 1996.  Thereafter there was further deterioration in the relationship between the appellant and his former wife.  The appellant, who by then had a partner, moved to Gidgegannup, leaving the girls in the care of his former wife.  The appellant then separated from his partner and went with a son of the marriage to his mother's home, where he remained until August 1997, when he moved to Bunbury. 

14. In late 1997 the mother of the girls made application to the Family Court for residence of them.  An order was made without opposition from the appellant.  Thereafter he had contact with the children each second weekend and during portion of the school holidays.  However, by March 1999 the appellant received a letter from "F" indicating that she was having problems with her mother and the mother's new husband.  Application was then made in the Bunbury Court of Petty Sessions for an interim change of residence but the proceedings were transferred to the Family Court.  Meanwhile, in April 1999 "F" ran away from home.  The appellant tried to get his former wife's consent to take "F" to Bunbury, but consent was not given.  Although the representative of the Department gave encouragement to the appellant to seek urgent orders in the Family Court in Bunbury for interim changes of residence, an application made for that purpose in the Bunbury Court of Petty Sessions was opposed by the former wife, who made an application for misconduct restraining orders against the appellant and others.  These latter applications were dismissed in the Joondalup Court of Petty Sessions and Family Court applications in Bunbury were transferred to the Family Court of Australia, where proceedings were set down for hearing in June 1999.  Meanwhile, in May 1999, daughter "A" was apprehended and in June 1999, daughter "F" apprehended.  Both of them were placed in the care of Ms Sue Taylor.  This in turn led to the proceedings before the learned Magistrate.

15. The history which I have outlined fully supports the learned Magistrate's conclusions that the appellant and his former wife are disposed towards conflict and that in the event of the application before the learned Magistrate not being granted, such conflict would escalate through long drawn‑out Family Court proceedings.  The whole history of the relationship supports the learned Magistrate's conclusions in that regard.  Although it is contended on behalf of the appellant that the weight of evidence indicates that most of the conflict was generated by the mother and the applicant had taken steps to diminish conflict by living well away from her, it is the fact that whether or not conflict is primarily generated by the mother, the fact of conflict between the girls' parents is the core problem for the family relationship.  The history I have recounted thus fully justified the conclusions reached by the learned Magistrate about "conflict".

16. Although it is argued that conflict between the parents, no matter how serious and persistent, is an insufficient reason to warrant a care and protection order, no authority was cited by counsel in support of that proposition, and I do not accept it.  As the daughter "F" made clear in the statement relied upon by the learned Magistrate, the conflict between her parents was entirely detrimental to her educational welfare and general well‑being.  Her desire to stay in foster care until that conflict has subsided weighed heavily upon the Magistrate, and in my view rightly so.  I am therefore of the view that there is no merit in the second ground of appeal.

17. The third ground of appeal complains that the learned Magistrate placed undue weight on what might be termed sexual aberrations on the part of the appellant.  It is contended that as there is no evidence that the children of the appellant are at any risk of sexual abuse from him, the learned Magistrate erred in this respect. 

18. I have already quoted the learned Magistrate's conclusion in relation to the appellant's "fixation on sexual matters" and general inappropriate and offensive behaviour in that area.  It is unnecessary for me to review all the evidence.  It is sufficient to point out that there was evidence that the appellant had been advertising his services as a homosexual prostitute in the local Bunbury newspapers, and that in relation to court of petty sessions proceedings where this subject was aired, the appellant did not deny the allegations.  The psychiatrist, Dr Main, pointed out in a report that the appellant denied having advertised himself in this way and tried to deflect the issue that his brother was jealous of him. 

19. Stuart Estcourt, a brother of the former wife, gave evidence that there was an occasion when the appellant had unexpectedly and without invitation begun kissing his wife.  Although this incident was denied by the appellant the learned Magistrate found as a fact that it had occurred.  Kim Radford, who had shared a house with the appellant, gave evidence that the appellant had written to her in relation to reversal of a sterilisation procedure she had undertaken.  The circumstances of this letter were considered by the learned Magistrate to demonstrate an attitude by the appellant of an entire lack of regard for the feeling of others around him, especially adult women.

20. Denise Oakey gave evidence of a number of incidents in which the appellant treated her with what might be described as overt sexual innuendo.  Her daughter Krystal Oakey (16 years of age) gave evidence that the appellant had told her of having sex with a woman on the beach.  Although denied by the appellant the learned Magistrate accepted it as the fact.  Jessica Oakey, another daughter of Denise Oakey, (15 years) testified that the appellant had told her of sexually assaulting his former wife against her will in circumstances where he had handcuffed her to the bed.  Although denied by the appellant the learned Magistrate found the conversation to have taken place.  Darlene Inkster, married to Richard Stuart, gave evidence of a number of disturbing incidents in which the appellant questioned her about her sexual experiences with her husband and gave every impression that whilst staying at the house he had spied on their sexual activity.  Finally, Richard Stuart, brother of the appellant, gave detailed evidence of a range of newspaper cuttings from the Bunbury Herald Newspaper between September 1997 and August 1998 which disclosed various advertisements on the part of the appellant (inter alia) advertising male massage and massage for ladies and couples.  The learned Magistrate observed in relation to this material that the appellant conceded placing the advertisements and that he provided a service, but refused to acknowledge that the advertisements suggested services for sexual gratification.

1. In my view all of this evidence revealed the appellant to be a person with inappropriate sexual interests.  The learned Magistrate was correct to say that it painted a picture of "a person who quite clearly does have a fixation on sexual matters".  Although the learned Magistrate did find that it was unlikely that the appellant's "possibly high level of sexual appetite could pose a physical threat to the children" and accepted that in the Family Court of Australia Anderson J had reached the view that there was no evidence of any sexual abuse by the appellant of the children, his Worship was right to be concerned that amongst other shortcomings exhibited by the appellant there was his inappropriate sexual behaviour.  Although the learned Magistrate did not use the finding made in that regard directly in the ultimate conclusion that a care and protection declaration was required, it would, in my view, have been a relevant consideration.  It cannot therefore be said that undue weight was placed on this evidence and for these reasons I find nothing in the third ground of appeal.

2. The fourth ground of appeal contends that the learned Magistrate erred in placing undue weight on the applicant's inability to change in the face of evidence to the contrary from a psychotherapist.  That psychotherapist was Prema Jansen, a practising psychotherapist since 1968.  He testified that although the appellant had some difficulty in "respecting people's boundaries" he had "a great rapport with the girls".  He added that psychotherapy would need to be ongoing for the appellant who was said to be responsive to his treatment.  Mr Jansen also expressed the view that an opportunity given to the appellant to look after his daughters would be a way to address "response to women generally".  However, the learned Magistrate emphasised that Mr Jansen was a friend of the appellant and had identified issues which were only part of the problems that the appellant had.  He pointed out that there was no comment from Mr Jansen (or from a psychologist who also gave evidence on behalf of the appellant) commenting on the level of conflict which would arise out of the issues they had identified.  Passages from Mr Jansen's evidence relied on by counsel for the appellant were:

   "MS PARKS:  And has he been receptive to your advice? --- I feel he has, to an extent; yes.  I don't know --- I think, in one way, he's kind of backed off from women, over the last, say, 6 months or so, which I feel is good, because he's going through some kind of a process of just getting in touch with himself more, so --- and --- but it's very hard to tell, even with my own personal clients, how much they take something in, or how much change is actually happening, but I --- I sense that he is taking it in, and he's really receptive and listening to me.

   Right.  And is it manifested in some other way, just recently, that you would say he is taking on board this difficulty relating to women? --- I have --- I'm not sure, but I have a feeling that maybe even his --- the opportunity for him to parent his daughters might be an expression of that --- of being more responsible and more attentive to women, or feminine, you know, to use a generic term, but yeah, I haven't --- I haven't seen any specific example where I could say he's been manifesting a change.

   Right.  Okay, then.  Now, in terms of ongoing counselling, what would you say about that, with respect to Geoffrey? --- What would I say about it?

   What would be your views about that continuing? --- You mean, do I think it's desirable or not?  Yeah.  I think so.  I think it would be really good if he had some ongoing counselling.  Sure.

   And --- ? --- I feel that about 99 per cent of people, myself included, because I think we all have gaps --- you know, we're all growing people, and I don't think we stop growing until we die, but with Geoffrey, I feel --- I feel it would be very valuable for him, specially if --- you know, if he's in a more close relationship with his daughters, to have somebody to give him support in learning to parent."

3. In my view the learned Magistrate gave full consideration and weight to the evidence of Mr Jansen but rightly took into account that Mr Jansen, although a registered psychotherapist, was a personal friend of the appellant and in any event failed to deal with all issues which were relevant to the application before the court.  I therefore find nothing in the fourth ground of appeal.

4. The final ground of appeal asserts that the learned Magistrate erred in finding that the appellant's personality disorder warranted the making of a care and protection declaration, particularly as the psychiatrist's diagnosis of personality dysfunction was based partly on opinion on evidence contained in certain files and was therefore hearsay.

5. However, Dr Main's evidence was fully tested in examination and cross‑examination in the proceedings before the learned Magistrate.  The basis upon which he reached his diagnosis and prognosis was carefully dissected by counsel who appeared.  There is nothing to suggest that the learned Magistrate could not accept the ultimate conclusion of the psychiatrist and to reach the conclusion (as he did) that "Dr Main's assessment, together with his continued attempts at reducing or denying blame leads me to a conclusion that he is in fact intransigent in the short term". 

6. When it came to the actual reasons for making the care and protection declaration the learned Magistrate relied primarily on the past and likely future conflict between the appellant and his former wife in relation to "Family Court battles" against which the children needed protection.  As I have already indicated, it was open to the learned Magistrate to reach the view he did about conflict.  In any event, the various other conclusions of the Magistrate supported the making of such a care and protection declaration.  I refer particularly to the narcissistic personality disorder of the appellant; the inappropriate sexual behaviour and interests of the appellant and the inability of the appellant to recognise "boundaries of acceptable behaviour between adults and between adults and children".  Whilst there may have been evidence that the appellant was capable of acting as a good parent, all factors needed to be brought to bear to determine whether or not in the circumstances it was appropriate that he should be given that role.  In my view the learned Magistrate's reasons take into account all relevant factors and carefully balance the evidence before him. 

7. It must be remembered that the learned Magistrate had the advantage of assessing the various witnesses who were called before him.  Although there was a good deal of written material before the learned Magistrate, the many witnesses who were called were extensively examined and cross‑examined.  The proceedings took several days.  The advantage which the learned Magistrate enjoyed in seeing and hearing the witnesses give their evidence is one in relation to which allowance must be given:  Devries v Australian National Railways Commission & Anor (1993) 177 CLR 472, particularly per Deane and Dawson JJ at 479 ‑ 480; State Rail Authority of New South Wales v Earthline (1999) 160 ALR 588 per Kirby J at 619 ‑ 620.

8. In Currie v Mannell & Anor, unreported; SCt of WA; Library No 8063; 14 February 1990, Commissioner Williams QC made reference to the two‑stage process involved in making a declaration under s 30(1) of the Act. He said (at 5 ‑ 6):

   "The formulation in s 30(1) of the court's functions on an application for a declaration that a child is in need of care and protection has features which warrant comment. The power to grant an application is dependent upon the court being satisfied that the application should be granted. The definition of a child in need of care and protection under s 4(1) contemplates a variety of alternative fact situations. The court's power does not depend only on a finding that the child fits within one or more of the fact situations. It is necessary the court 'should' make a declaration. This imports a discretion. The power to make the order is dependent on the court finding as a matter of fact that the child in question is a child within one or more paragraphs of the definition and then, as a matter of discretion, that the court should make a declaration that the child is in need of care and protection. On that basis it is open to the court, for example, to find as fact that a child, when found, was living under conditions as to indicate its moral welfare is likely to be in jeopardy within s 4(1)(k) but, in its discretion, to decline to make a declaration under s 30(1) on the basis of evidence that arrangements are in hand for the child to be removed to the care of a responsible relative or guardian.

   In Director General of Community Services v McCann, (Unreported - Supreme Court of Western Australia, delivered 3 April 1986) Pidgeon J held that once the Children's Court was satisfied that an application to declare a child in need of care and protection should be granted and had declared accordingly, the court was obliged to order either that the child be committed to the care of the Department, or that it be placed under the control of the Department, for an appropriate period. In other words, in his Honour's opinion, the word 'may' where it secondly appears in s 30(1) means 'must'. That decision is not inconsistent with the court having a discretion to make the relevant declaration. But, having exercised the discretion to make the declaration, the court does not have a further discretion as to whether it will or will not make an order. Having determined to make the declaration, the court is obliged to make an order. The further exercise of discretion is limited, first, to choosing between an order under para (a) and para (b) and secondly, to determining the period of the care or the control, as the case may be."

   To the extent that the learned Magistrate's decision involved, as it did, discretionary considerations, this Court must be slow to exercise its discretion in substitution for that of the Magistrate.  House v The King (1936) 55 CLR 499 is repeatedly cited for this well‑known proposition. Dixon, Evatt and McTiernan JJ (at 504 ‑ 505) there said:

   "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

   In Norbis v Norbis (1986) 65 ALR 12, Wilson and Dawson JJ (at 27) echoed this passage in a case concerned with division of property in the Family Court. Their Honours said:

   "Other than the suggestion, which is not sustainable, that the trial judge acted wrongly in failing to apply a global approach, there is nothing to show that the trial judge was in error in the exercise of his discretion.  The variation made by the Full Court shows merely that it would, in the exercise of the same discretion, have been disposed to give the wife a relatively small additional amount.  A mere preference for a different result is, as the authorities have constantly reiterated, an insufficient basis for interference with the exercise of the trial judge's discretion:  House v R (1936) 55 CLR 499 at 504‑5; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627; De Winter v De Winter (1979) 23 ALR 211 at 216‑7; Gronow v Gronow (1979) 29 ALR 129; 144 CLR 513 at 519; Mallet (ALJR) at pp 252, 255 and 260‑1; (ALR) at pp 200‑1, 206‑7.  The primary court must be shown to have erred before an appeal can succeed."

   Applying these principles, I cannot in the present case see any basis upon which the learned Magistrate's discretion can be said to have miscarried.

9. For the reasons I have given I am unable to find any substance in the grounds of appeal which have been advanced and I would therefore dismiss the appeal.