GSA v Chief Executive Officer, Department of Communities
[2025] WASC 375
•9 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GSA -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2025] WASC 375
CORAM: HOWARD J
HEARD: 2 & 25 JULY 2025
DELIVERED : 9 SEPTEMBER 2025
FILE NO/S: SJA 1005 of 2025
BETWEEN: GSA
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
First Respondent
APG
Second Respondent
ON APPEAL FROM:
For File No: SJA 1005 of 2025
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MARTIN
File Number : PER/PC/159/2023
Catchwords:
Single judge appeal - Appeal against protection order made by the Children’s Court - Standard of appellate review - Need to identify error - Whether the Magistrate failed to properly consider the evidence in finding the child was in need of protection and in making a protection order in relation to a child - Whether the Magistrate erred in setting aside a witness summons - Whether the Magistrate erred in law by speculating as to future harm - No error made - Leave to appeal refused - Appeal dismissed
Legislation:
Children and Community Services Act 2004 (WA) s 8, a 28, s 37, s 54, s 139
Children's Court of Western Australia Act 1988 (WA) s 42
Criminal Appeals Act 2004 (WA) s 8, s 9
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | Ms J Buller |
| Second Respondent | : | Mr P J Hannan |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Aldi Foods Pty Ltd v Morocconoil Israel Ltd [2018] FCAFC 93; (2018) 358 ALR 683
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366
Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424
H v P [2011] WASCA 78
House v The King [1936] HCA 40; (1936) 55 CLR 499
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
PVS v Chief Executive Officer, Department of Child Protection [No 2] [2011] WASC 318
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
X v Y [2015] WASCA 70
HOWARD J:
On 30 March 2023, APG, a child born 27 August 2018, was taken into provisional protection and care under s 37 of the Children and Community Services Act 2004 (WA) (CCS Act).[1] APG is the second respondent in this Court.
[1] Unless otherwise indicated, statutory references from here are to this Act.
On 3 April 2023, the first respondent (CEO) applied to the Children's Court of Western Australia for:
1.an interim order that APG was to remain in provisional protection and care; and
2.a final order, being a protection order for APG for two years (application).
The grounds of the application were stated to be under s 28(2)(c)(ii) and/or s 28(2)(c)(iii) of the CCS Act.
The respondent to the application in the Children's Court was APG's father (GSA), who is the appellant in this Court.
The CEO and GSA (and APG) agreed on the appointment of a court expert and orders were made to that effect on 1 May 2024.
Dr Watts was so appointed and on 4 July 2024 lodged his first report (dated 2 July 2024). [2]
[2] BoM at page 979.
The CEO filed an amended application on 25 July 2024 (amended application). That amended application stated the grounds as:
1.sexual abuse or risk of sexual abuse under s 28(2)(c)(ii) of the CCS Act; and
2.emotional abuse or risk of emotional abuse under s 28(2)(c)(iii) of the CCS Act.
The amended application sought a protection order for APG for one year.
GSA represented himself before the Magistrate in the Children's Court and in this Court.
APG was separately represented at the trial.
Following a nine‑day trial (in which 24 witnesses were called), on 16 December 2024, Magistrate K Martin:
1.found that APG was in need of protection pursuant to s 28(2)(c)(iii) of the CCS Act; and
2.made an order pursuant to s 54 of the CCS Act that the CEO have parental responsibility for APG for a period of 18 months.
By an appeal notice filed 15 January 2025 (Appeal Notice), GSA appealed against the order made by the Children's Court.
By s 42(1) of the Children's Court of Western Australia Act 1988 (WA) the order made by the Magistrate may be subject of an appeal made in accordance with Pt 2 of the Criminal Appeals Act 2004 (WA).
Relevantly, s 8 of the Criminal Appeals Act provides:
8.Grounds for appealing
(1)An appeal may be made under this Division on one or more of these grounds —
(a)that the court of summary jurisdiction —
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
…
(b)that there has been a miscarriage of justice.
By s 9 of the Criminal Appeals Act the consequence of that is that GSA requires leave to appeal on each of his grounds.
By s 9(2) of that Act, leave is only to be given if the Court is satisfied that the ground has a reasonable prospect of succeeding.
Outline of the Magistrate's reasons
The Magistrate's reasons were delivered orally on 16 December 2024. The transcript of those reasons was before this Court in different places in the materials. From here, I have used the transcript of the reasons which commenced at page 2026 of the Book of Materials filed in this Court on 15 May 2025 (BoM) and I have used the BoM page numbers rather than the individual transcript page numbers.[3]
[3] Also, I have used the page numbers from the BoM, rather than page numbers from the transcript itself of pre‑trial and trial hearings before the Magistrate. I have used transcript pages in these reasons to refer to the two hearings before me.
After noting that GSA represented himself at the trial, the Magistrate said:
As such, [GSA] was given considerable leeway in running his case. At the commencement of trial and throughout, steps were taken to ensure he understood the importance of and procedures surrounding various aspects of the trial process, including cross-examination. [4]
[4] BoM at page 2030.
In addition to the oral evidence, a number of affidavits and other documents were tendered in the trial and were recorded in a consolidated list of exhibits. The Magistrate said that was a reflection of the material he had considered.[5]
[5] BoM at page 2030.
The CEO, in line with his amended application, made two broad allegations, being:
1.GSA had subjected APG to sexual abuse under s 28(2)(c)(ii) of the CCS Act; and
2.APG had suffered emotional abuse or was likely to suffer emotional abuse under s 28(2)(c)(iii) of the CCS Act.
As will be seen, broadly, the Magistrate:
1.did not accept the case that GSA had perpetrated sexual abuse on APG;
2.did not base the order he made on APG having suffered emotional abuse;
3.found that APG was likely to suffer harm, as in emotional abuse, going forward;
4.found that GSA was unlikely or unable to protect APG from that harm; and
5.considered it was appropriate to make an order under s 54 of the CCS Act.
No finding that GSA was a perpetrator of sexual abuse
The Magistrate was not satisfied that APG was in need of protection on the basis that GSA had been a perpetrator of sexual misconduct towards APG.[6]
[6] BoM at page 2047.
In so finding, the Magistrate preferred Dr Watts' evidence as to the cogency of the disclosures said to be made by APG,[7] over the evidence given by witnesses called by the CEO.
[7] BoM at pages 2047 ‑ 2048.
Further, the Magistrate found that even if he 'only' gave Dr Watts' opinion equal footing with the other evidence led, he could not be satisfied that the allegations of sexual harm had been made out.[8]
[8] BoM at page 2048.
I should note that in the course of his submissions at the hearings before me, GSA asserted at different times that the Children's Court was in some way not independent of the CEO or the Department. I have captured some of those complaints more specifically below.
There was nothing in the material before me to support in any way such a proposition and, as I identified to GSA in the course of the hearing, this finding of the Magistrate against the CEO's contention was completely inconsistent with GSA's allegations of a lack of independence of the Children's Court.
Had APG suffered, or was APG likely to suffer, harm
The Magistrate then turned to whether APG had suffered or was at risk of suffering emotional abuse.[9] The Magistrate stated:
Much of the evidence of emotional abuse or risk thereof was centred around whether [APG] has been exposed to inappropriate discussions of sexual abuse by [GSA]. [10]
[9] 'Emotional abuse' is one of the possible ways in which a child may become 'in need of protection' within s 28(2) of the CCS Act.
[10] BoM at page 2048.
The starting point for the Magistrate's consideration of this was that:
On the evidence presented at trial, [GSA] raised concerns about at least five or six other people posing a risk of sexual harm to [APG].[11]
[11] BoM at page 2048.
The Magistrate said these allegations included APG being:
1.sexually abused by someone at Methodist Ladies College's Early Learning Centre (MLC);
2.sexually abused by someone at Point Resolution Daycare Centre;
3.sexually abused or groomed by [GD][12];
4.at risk of sexual abuse by GSA's sister or that she would facilitate or allow sexual abuse by [GD]; and
5.possibly sexually abused previously by GSA's brother, while not expressed as a current concern.[13]
[12] As set out below, GD is GSA's niece.
[13] BoM at page 2048.
Having considered the evidence in relation to each of those individuals, the Magistrate summarised his findings on GSA's concerns of previous abuse in this way:
That [GSA] holds idiosyncratic views about the signifiers of sexual assault and, in particular, the significance of stuttering and potentially exposure to adults who are homosexual. That [GSA] has formed fixed, though unfounded, views that [APG] has been sexually abused in two separate day cares by at least two separate workers. That whilst there is an aspect of [GD's] behaviour that [GSA] is right to be cautious about, his interpretation of photos of [APG] and [GD] as being evidence of sexual abuse does not marry up with reality, and [GSA] has over‑interpreted developmentally appropriate behaviour by [APG] as being evidence of sexual assault.
There is no cogent evidence to support [GSA's] allegations in respect of [GSA's sister] and limited evidence available to assess the historic concerns raised about [his brother]. [14]
[14] BoM at page 2058.
Having made those findings, the Magistrate moved on to:
… assess whether [APG] has been exposed to [GSA's] idiosyncratic views about sexual assault or is likely to be exposed to those views in the future, and, if so, whether there has been an impact on [APG] or whether there is likely to be an impact on [APG] in the future. [15]
[15] BoM at page 2058.
The Magistrate then made the following findings, which I consider to be significant:
There are several times when the evidence demonstrates that [APG] has already been exposed to [GSA's] views about sexual abuse. These include when [GSA] was taking steps to have [APG] assessed by professionals. This included making requests of the department to intervene, included contacting Dr Watts' office prior to these proceedings and prior to his appointment to request that his office independently assess the situation, and making arrangements for [APG] to be spoken with by Dr Janardhanan in respect of [GD], which did, in fact, take place.
[GSA] also spoke to [APG] about Maddie [of MLC] and, on at least one occasion, initiated a conversation about [APG] being tickled by Maddie … The evidence supports [GSA] having had conversations with [APG] about the situation with [GD].
[…]
It also [gives] the clear impression that [APG] is aware of her father's attitude towards [GD].
There was also the situation on [GSA]'s own admission when he used colourful language in confronting [GD] on an occasion, which he admits [APG] would have heard, and, also, the time when [APG] had a cut on her vagina and [GSA] took a photograph of it. In fairness to [GSA], it's important that I acknowledge that he was, at one point, given advice from an officer from the department that he should ask questions of [APG] to find out more about [GD]. [16]
[16] BoM at pages 2059 - 2060.
The Magistrate then asked two questions, namely:
1.whether APG's exposure to her father's views about sexual abuse had so far caused harm to her;[17] and
2.whether there was a possibility of future harm if APG were exposed to GSA's beliefs.[18]
[17] BoM at page 2060.
[18] BoM at page 2060.
As to the first, his Honour found that the evidence on whether actual harm had yet been caused to APG was limited.[19]
[19] BoM at page 2060.
I take that to be a finding that APG had not, prior to being taken into provisional protection and care, suffered harm as a result of emotional abuse.
As to the second, the Magistrate made the following significant findings:
As to the possibility of future harm, Dr Watts' evidence was clear. His evidence was that if [APG] is exposed to [GSA's] beliefs, she may take them on and see herself as a victim of sexual assault.
In essence, it was Dr Watts' evidence that forming a false belief of having been a victim of sexual assault carries the risk of [APG] having the same emotional experience of being a victim of sexual assault. Further, that sufficient exposure to these inappropriate views may become detrimental to [APG's] wellbeing, and that her exposures to [GSA's] beliefs so far are potentially already impactful on her.
In addition to Dr Watts' evidence as to harm, the evidence supports other risk to [APG's] wellbeing that flow from [GSA's] idiosyncratic beliefs about sexual abuse. These include risk of instability to [APG's] future school arrangements, along the lines of what happened at MLC and Point Resolution, and risks to [APG's] relationships, with [GSA's] evidence being that he would, essentially, sever [APG's] relationship with [GSA's sister] if she were returned to his care. On the evidence before the court, [APG's] relationship with [GSA's sister] is one where her emotional needs are being met.
In drawing conclusions about emotional harm, I find as follows. Firstly, [GSA] has unfounded and idiosyncratic views about sexual harm and its signifiers. Secondly, [APG] has been exposed to his views in the past. Thirdly, [GSA] continues to firmly hold his unfounded and idiosyncratic views about sexual abuse, and, as such, [APG] is likely to be exposed to those views in the future if she were to return to his care.
Fourthly, I'm satisfied that there is a likelihood of emotional harm if [APG] continues to be exposed to [GSA's] views about sexual harm. It follows that I am satisfied on the balance of probabilities that [APG] is likely to suffer harm as a result of emotional abuse due to exposure to [GSA's] views on sexual harm, and that [GSA] is unlikely to protect her from harm of that kind. As such, the threshold issue at section 28 [of the CCS Act] has been made out. [20]
Whether a protection order should be made
[20] BoM at pages 2060 ‑ 2061.
The Magistrate then said he had to consider whether the orders sought by the CEO were in the best interests of APG and better than making no order at all.[21]
[21] BoM at page 2061.
The Magistrate said that given his findings that APG was likely to suffer harm (described by the Magistrate as the 'threshold issue'), he had concerns about GSA's capacity to protect APG from emotional harm.[22] The Magistrate referred to some other matters in addition to his findings on the 'threshold issue'. This was clearly a reference to the concluding words after (v) in s 28(2)(c) of the CCS Act.
[22] BoM at page 2061.
The Magistrate also considered what he described as the 'section 8 best interests factors'.[23] This is clearly a reference to the factors which must be taken into account when determining the best interests of the child as set out in s 8(1) which applied by s 7, (both of the CCS Act) to the particular function being undertaken by the Magistrate.
[23] BoM at page 2061.
Having set out his reasoning on the 'best interests factors' the Magistrate made the following judgment:
Weighing the best interests factors together, and notwithstanding some of the strengths that [GSA] has been able to demonstrate as a parent, I am satisfied to the required standard that the making of a protection order is in [APG's] best interests and (indistinct) in forming this view, I have particular regard to my findings that [APG] is a child in need of protection and that there is a likelihood of emotional harm, that there is a degree of disconnect between [APG] and her father, that [APG] is, to some extent, apprehensive or fearful about her father, and that an unsupported transition for [APG] would be a harsh experience for her.
Further to the no order principle, I am alive to the possibility that [GSA] may choose not to have contact with [APG] during the course of a protection order. This is deeply sad for [APG], however, it is a matter that is squarely within [GSA's] control, given that the department are in support of contact. His indicated refusal to have contact with [APG] during a protection order is therefore not a factor that persuades me against making one in circumstances where I have found that this attitude reflects a lack of insight into what [APG] needs.[24]
[24] BoM at page 2068.
The Magistrate then turned to consider what the length should be of the protection order. His Honour stated:
It is my expectation that, now that the evidence has been tested, the department will course correct on its concerns around sexual harm. Having concluded that there should be a protection order, I am invited by the department to consider that it should be a long-term one. As I understand it, the basis for the submission is along these lines. That [GSA's] views are firmly held, that there is little evidence before the court that [GSA] is motivated to change, that [GSA] has given evidence that he does not intend to engage with the department or have contact, and, in those circumstances, the possibility of reunification seems remote.
While there is some merit in that argument, the spirit of the Children and Community Services Act places a primacy on the child's relationship with his or her parents. If [GSA] is able to address the protection concerns as I have found them, it would be in [APG's] best interests for her to be returned to her father. Whilst there is an understandable degree of scepticism about whether [GSA] is capable of addressing the protection concerns in rising to meet [APG's] needs, my hope is that [GSA] will reflect on and give careful consideration to my findings, seek therapeutic assistance, as Dr Watts has recommended, be that from Darin Cairns or another suitably qualified expert, take up contact and work towards reunification.
Should he do this, I am hopeful of the possibility of [APG] returning to her father's care. Further, there has been no unequivocal evidence that [GSA] is incapable of change, with Dr Watts observing that this is not a case where there have been failed interventions that need to be taken into account, and there's no evidence before the court to suggest that [GSA] – that giving [GSA] the opportunity to reflect on his stance of refusal would be detrimental to [APG].
As such, I am not satisfied that long-term arrangements are reasonably necessary. Having said that, given the clear hurdles ahead of [GSA], I am equally not satisfied that one year provides enough time for [GSA] to reflect and take steps towards addressing the issues.
To that end, I make a protection order, time limited for a period of 18 months, to give [GSA] additional time to work towards reunification. Of course, it is my best hope that [GSA] is able to achieve reunification well inside that period of time.[25]
[25] BoM at pages 2069 - 2070.
Grounds of appeal
In the Appeal Notice, GSA stated nine grounds of appeal:
1.The Magistrate failed to properly consider some evidence and as such made errors of facts;
2.The Magistrate failed to allow a key witness to give evidence;
3.The Magistrate is making false speculation about the future without genuine justification and / or proof;
4.An expert witness has been secretly interfered with causing him to change his opinion;
5.Key information was deliberately withheld from an expert witness making his findings / opinion partially invalid;
6.Unreasonable decision;
7.Inadequate legal representation by the appellant;
8.The Magistrate made an error in law; and
9.The Magistrate vision of what the Childs best interest looks like, is not supported by reality.
On 26 March 2025, GSA filed 'Particulars of Grounds of Appeal' (March Particulars).
On 29 April 2025, GSA filed detailed submissions headed 'Outline of Argument of Appeal' (April Outline).
On 24 July 2025, GSA filed a further three‑page 'Appeal submission' (July Submissions). The July Submissions were sent to the Court the day before the resumed hearing.
In addition, GSA has made a number of applications to adduce evidence in this appeal. I will return to those applications.
Standard of appellate review
Gageler J (as he then was) in Minister for Immigration and Border Protection v SZVFW[26] (SZVFW) conveniently described the two standards of appellate review: see also, for example, Ammon v Colonial Leisure Group Pty Ltd.[27]
[26] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW).
[27] Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [127] and following (Murphy, Mitchell & Beech JJA).
In both error must be shown. However, the appeal court approaches the task of discerning error somewhat differently depending on the character of the primary court judgment.
The first standard is the 'more general correctness standard of appellate review',[28] which is applicable to errors of law.
[28] SZVFW at [43].
On the first standard, where a (true) error of law is asserted, the appellate court's disagreement with the conclusion reached indicates error which must be corrected.[29] In such cases, as Allsop J (as he then was) stated:
By the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction there can be but one correct meaning …[30]
[29] Aldi Foods Pty Ltd v Morocconoil Israel Ltd [2018] FCAFC 93; (2018) 358 ALR 683 at [45]; (Aldi v Morocconoil) (Perram J); see also SZVFW at [127] per Edelman J.
[30] Branir Pty Ltd v Owston Nominees (No 2)[2001] FCA 1833; (2001) 117 FCR 424 at [25]; (Branir).
The second standard applies to 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right'.[31] To be clear, it is not that minds might reasonably differ which attracts this second (deferential) standard: Ammon v Colonial Leisure Group Pty Ltd.[32]
[31] SZFVW at [43] per Gageler J citing with approval Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 517 - 518; (Mason and Deane JJ).
[32] Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [128] (Murphy, Mitchell & Beech JJA).
In distinguishing which judgments attract which standard of appellate review, Gageler J eschewed the characterisation of 'evaluative' or the description of it being 'a topic on which judicial minds reasonably differ':
The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King[33] standard applies. The resultant line is not bright; but it is tolerably clear and workable.[34]
[33] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[34] SZVFW at [49].
Gageler J then approved[35] the approach which has been taken to such appellate review in the Full Federal Court by reference to Branir.[36] The Court of Appeal has also unanimously approved of that approach in H v P[37] and X v Y[38].
[35] SZVFW at [50] per Gageler J.
[36] Branir at [25] per Allsop J for the Court.
[37] H v P [2011] WASCA 78 at [47] per Murphy JA for the Court.
[38] X v Y [2015] WASCA 70 at [61], [62] per the Court.
Gageler J stated in SZVFW[39] it is the:
House v The King standard [which applies] to appellate review of evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude or choice or margin of appreciation such as to admit of a range of legally permissible outcomes.
[39] SZVFW at [44]; See also Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 212 (Mason CJ, Deane & McHugh JJ).
As Allsop J noted of such decisions:
The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment …[40]
[40] Branir at [24]; [2001] FCA 1833 at [24]; as approved by this Court in H v P [2011] WASCA 70 at [47] and X v Y [2015] WASCA 78 at [61].
The CEO submitted that the Magistrate's decision below was a discretionary judgment[41] and cited PVS v Chief Executive Officer, Department of Child Protection [No 2] (PVS v CEO) [42] to support that proposition. The CEO, consequently, submitted that the second standard of appellate review applied.[43]
[41] First respondent's submissions filed 20 May 2025 [14].
[42] PVS v Chief Executive Officer, Department of Child Protection [No 2] [2011] WASC 318 (PVS v CEO).
[43] First respondent's submissions filed 20 May 2025 [15].
In PVS v CEO,[44] Murray J said:
… The decision whether or not to make a protection order is a matter of discretionary judgment, the discretion being exercised in accordance with the objects and principles espoused in the CCS Act.[45]
[44] PVS v CEO at [45].
[45] See also PVS v CEO at [143].
As will be seen, I consider this submission of the CEO, with respect, to be a little too broad if it is to be applied to all of GSA's contentions on appeal.
For example, Appeal Ground 8 raised a matter which would attract the correctness standard.I have understood Appeal Ground 8 to correspond with GSA's complaints about the Magistrate misinterpreting s 28(2)(c)(iii) of the CCS Act. Other of the appeal grounds are different and appear more focussed on the Magistrate's findings under s 28(2)(c) and his assessment that a protection order ought to be made under s 54.
The order ultimately made by the Magistrate below has similarities in its type and character with parenting orders made in the Family Court. X v Y was an appeal from parenting and related orders concerning the children of a de facto relationship which had been made by a magistrate of the Family Court of Western Australia.
The Court of Appeal in X v Y stated:
It is unnecessary for present purposes to go so far as to determine that the decision under appeal is, or is sufficiently analogous to, a 'discretionary' decision so as to attract the principles in House v The King. Nevertheless, the question of what is in the best interests of the children in a case such as this involves, at least, an evaluative judgment. It involves 'elements of fact, degree and value judgment' and draws upon the judge's experience and familiarity with the nature of the subject matter …
matters of evaluative judgment may be attended 'by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers'.[46]
[46] X v Y [62] (Newnes & Murphy JJA and Chaney J) (citations generally omitted).
The Court of Appeal, without expressly identifying the applicable appellate standard, dealt with the appellant's particulars in his Ground 1 and concluded that none pointed to any error or any material error. In relation to at least one of them, the Court of Appeal expressed itself as:
Those findings were open to the magistrate. The appellant has not established error by the primary court.[47]
[47] X v Y [2015] WASCA 70 [121].
Here, I do not consider that the ultimate decision and order which the Magistrate made were such that it can be said that there was or is only one uniquely correct outcome.
I do not need to decide if Murray J was correct to describe the making of a protection order as being a matter of discretion.
Whether the order made by the Magistrate in the primary court is correctly described as a discretionary judgment or one that involves elements of fact, degree and value judgment, does not need to be decided here. That is because, in my view, both attract the second standard of appellate review in House v The King.
With a discretionary or evaluative judgment (both attracting the second standard), mere disagreement by the appellate court with the primary court judgment below does not indicate error. Rather, the question is whether the appellate court detects error in the finding/s or orders made.[48]
[48] Aldi v Morocconoil (2018) 358 ALR 683 at [49]; [2018] FCAFC 93 at [49] (Perram J); Branir (2001) 117 FCR 424 at [24]; [2001] FCA 1833 at [24] per Allsop J for the Full Court; Scenic Tours v Moore [2018] NSWCA 238; (2018) 361; ALR 456 at [253] - [256] per Sackville AJA for the Court
GSA's complaints in this appeal
With respect, it is not easy to deal with the matters that GSA raises in this appeal. There is no consistent relationship between the grounds of appeal set out above and the lengthy, closely typed April Outline which ran to 248 paragraphs. Further, the oral submissions made by GSA did not address themselves particularly to the grounds of appeal, nor to his written submissions.
No doubt because he was self represented, in part at least, the complaints that GSA has made to this Court as to the trial and the orders of the Children's Court are neither short nor precise. To try and fairly assess whether GSA's complaints disclose an appellable error, I have grouped his complaints by topic initially rather than under the appeal grounds contained in the Appeal Notice.
Complaints about the Department
GSA made many complaints about the Department and its officers. Some of these are captured elsewhere. Specifically, here, I note GSA's complaints:
1.as to the way it investigated matters, or did not do so: April Outline [192], [209], [211], [233], [234] and [238]; and
2.that it was motivated by a view to punish GSA for his homophobic beliefs to the effect that it maintained its case knowing it was without substance: April Outline [173], [182], [209], [210 and [227].
Required investigations
GSA has a strong sense that the proceedings before the Children's Court were (wrongly) directed at him, rather than being addressed to what he considered to be the real issues, namely who had sexually abused APG and what action should be taken against them.
Perhaps fuelled by this belief, GSA contended in this Court that there needs to be a series of investigations conducted as to various aspects of the application, trial and many of its actors.
Both orally and in his April Outline, GSA asserted that there needed to be investigations conducted into various people and agencies.[49]
[49] For example, GSA contended that the Children's Court had a toxic culture that needed changing: April Outline [235]; made an insinuation that the City of Nedlands had closed the Point Resolution Childcare Centre and 'lost' records after GSA contacted the City for information: April Outline [102]; and asserted MLC had covered up possible sex abuse: April Outline [230].
GSA specifically sought an investigation into certain aspects of the Department's conduct which he identified in the April Outline [231].
As noted, GSA considers that the Department and others were motivated to punish him by removing APG because they considered him to be acutely homophobic: April Outline [14].
GSA contended that a number of people who were witnesses, or lawyers, in the trial or who had provided reports of one kind or another, should be investigated 'to see if any person including …[50] identify as LGBTQIA [sic] and if they also have placed their sexual preference orientation before the best interest of [APG] or [GSA]: April Outline [227].
[50] I do not see that incorporating the names of the 18 people identified by GSA adds anything here.
To a similar, unbecoming end, GSA described certain officers of the Department as 'simpletons' who 'do not even have children of their own': April Outline [210] and [212].[51]
[51] It was unclear whether one of the orders sought by GSA in his March Particulars (that this Court should recommend the 'introduction of roughly 30% male staff' to the Department) was intended to 'counter' these matters.
GSA nominated at least six individuals who needed to be independently investigated for perjury, dishonesty, or perverting the course of justice: April Outline [228] and [236].
Further, GSA appeared to feel unconstrained from making particularly personal observations, criticisms or complaints about individuals. These were unnecessary, unsupported and scandalous: see, for example, April Outline [51], [55], [91], [95], [99], [148], [184], [210] and [212].
The complaints about the Department referred to above and the investigations which GSA said needed to be conducted, do not immediately appear to support any of GSA's appeal grounds.
While established perjury, dishonesty or a witness or other actor in the trial perverting the course of justice may demonstrate that there was a miscarriage of justice, a mere allegation or complaint does not. Rather, a review of the complaints under the above two headings suggests that the complaints rather indicate GSA's strong sense of grievance and disagreement with things said or done.
I do not consider that any of the complaints under the above two headings point to any error or to there having been a miscarriage of justice.
Lack of investigations conducted below
In this grouping of complaints, principally, GSA complained that the Department did not adequately investigate, or investigate at all, allegations which he had reported. And, as a further aspect of those complaints, GSA submitted that the Magistrate, in the absence of that investigation, should have put more weight on GSA's allegations and should have questioned why an investigation had not been carried out: April Outline [107], [108] and [231].
It is not obvious to which of GSA's appeal grounds this group of complaints is directed. It may be that GSA sees the group as going to Ground 1: see March Particulars A4.
However, in this respect, the Magistrate in his reasons said:
I also note the department took limited or no steps to investigate concerns regarding [GD], including when [APG] appears to have disclosed to her carer that [GD] stuck her finger up her bum at a time when [APG] was in the care of the CEO. I also note that there were aspects of Ms Talikowski's evidence that had the potential to come across as minimising the concerns raised, and in some respects, painting the interaction as appropriate.[52]
[52] BoM at page 2054. This passage seems contrary to GSA's position as put in the March Particulars A7.
So, it may be seen, that the Magistrate acknowledged that there was limited or no investigation undertaken by the Department into GD's behaviour.
However, while GSA considered that this was another deficiency in the conduct of the Department, I do not see how it contributed to any error on the part of the Magistrate nor, further, how GSA was materially prejudiced in the trial.
That is because GSA was able to bring to the trial all of the evidence available to him which concerned GD's behaviour and the behaviour of the others whom he believed had sexually assaulted APG.
It seems to me to be only speculative on the part of GSA to assert, if he is asserting this, that some further investigation may have unearthed material which may have supported the allegations he had made. And, then, to assert that if those possibilities became fact, that a different result would have occurred.
In considering these complaints and whether they can point to error or miscarriage of justice, it must be remembered that GSA had the opportunity to call witnesses[53] and cross-examine witnesses at the trial.
The Magistrate
[53] With the exception of GD who is considered below.
Variously, GSA contended that the Magistrate:
1.was pressured into providing a specific decision: April Outline [188];
2.was pressured by the Department: April Outline [61] and [69]; ts 243 and 293;
3.was deceitful: April Outline [215]; and
4.followed (blindly) the position of APG's lawyer: April Outline [226].
None of these complaints directly relate to an appeal ground.
Nonetheless, if there was any basis to any of them, then it may have required further appellate assessment.
However, there is simply no basis on the material before me that supports GSA's assertions. These complaints really amount to nothing more than GSA's dissatisfaction with the result and his 'explanation' as to how such a wrong result (in his view) could have been reached.
These complaints do not point to any appellable error.
GSA's self-representation
The April Outline under the heading 'I - Inadequate legal representation by the appellant' points to asserted shortcomings in the presentation of GSA's case, and so the trial, because he was self-represented.
This relates directly to Ground 7: see March Particulars F. I have taken this to be a complaint that there was a miscarriage of justice below, rather than it pointing to any error made by the Magistrate.
Nothing in the paragraphs under this heading in the April Outline suggest that there was, in any way, a miscarriage of justice.
Further, there is nothing to suggest that GSA did not receive a fair hearing in the court below.
I do not accept there was a miscarriage of justice based on any of these matters.
GD
GD is GSA's sister's daughter and, so, could be described as GSA's niece, although GSA did not use that word.
By the time of the hearings before me, for GSA the principal abuser of APG was GD as encouraged by her mother, GSA's sister.
To understand the complaints which GSA made in relation to GD, it is helpful to firstly record what the Magistrate said about GD. The Magistrate said:
Turning to the allegations about [GD]. [GD] is [APG's] cousin. She is in her early 20s. While it was not fully explored in the evidence, it seems to be commonly understood that [GD] has complex needs and potentially intellectual disability. It also seems to have been commonly understood that [GD] has a history with the department and a criminal record, though the nature and extent wasn't fully explored in the evidence.
In relation to [GD], [GSA's] concerns arise in a number of different ways. These include that [GD] is a lesbian, that [APG] attempted to tongue-kiss [GSA], and [APG] said [GD] taught her to do this, that [APG] has exhibited other forms of sexualised behaviour, that [GSA's] concern that [GD] has taken sexual pleasure from various interactions with [APG], including having her bounce on her lap, and that certain photographs of [GD] and [APG] together are demonstrative of this, and that [GSA] observed seeing [GD] pull [APG's] head towards her crotch.[54]
[54] BoM at page 2053.
The complaints which GSA made about GD were that:
1.she had been the perpetrator of sexual abuse against APG: April Outline [47]. [75], [76.3] and [141]; ts 248, 251 and 281;
2.GD's criminal record was not put into evidence at the trial: April Outline [40], [41], [78], [80], [124] and [219]; ts 282 and 303;
3.she was prevented from giving evidence at the trial: April Outline [56]; ts 295; and
4.Dr Watts had not considered GD's criminal record (which I consider with the other complaints about Dr Watts below).
These were interconnected to some degree.
GSA's complaints about GD, and for that matter about his sister, can only be relevant, in my judgment, to his complaints that the Magistrate erred in holding that his (GSA's) beliefs as to APG having been sexually abused were unfounded (and, then by extension, the findings as to the likelihood of future harm).
The Magistrate found that the Department's response to GSA's concerns about GD had been inconsistent and had the potential to send mixed messages to GSA.[55]
GD's sexual abuse of APG
[55] BoM at pages 2053 - 2054.
The matters, as I understand it, that GSA relies on for his submissions that GD did sexually abuse APG are:
1.a disclosure to Dr Janardhanan that '[GD] is rude. She touches me over here [points to her vulval region] and I don't like it': April Outline [76.3];
2.GSA had seen GD push APG's head toward GD's 'vagina area': April Outline [141]; and
3.APG trying to 'tongue kiss' GSA and disclosing that [GD] taught APG how to 'tongue kiss': April Outline [141].
These concerns were relayed by GSA to Dr Watts in their interview prior to Dr Watts' first report.[56]
[56] Independent Psychological Report dated 2 July 2025 (Psychological Report); BoM 979 at 985 [38].
Dr Watts in that report reviewed APG's presentation and conduct (to explore whether it evidenced sexual abuse) and opined that APG's conduct did not evidence any sexual abuse and was age appropriate or age typical.[57] Dr Watts also did not consider that what GSA was describing to him amounted to anything more than mildly inappropriate behaviour on the part of GD.[58]
[57] Psychological Report; BoM 979 at 985 [39], at 987 [51].
[58] Psychological Report; BoM 985 [39] and at 987 [51].
It is plain that GSA strongly disagrees with the conclusions that Dr Watts reached on these matters. It must be remembered, here, that GSA had the opportunity to cross examine Dr Watts at the trial. There is no reason to think that if Dr Watts had been cross-examined on these matters, that his evidence in cross examination would not have been carefully considered by the Magistrate.
The Magistrate made the following findings about GSA's allegations against, or concerns with, GD:
First, there was an occasion when [GSA] observed [GD] to have [APG's] face in her crotch area. Secondly, the only conclusion I can reach on this is that [GSA's] observation of [GD] pulling [APG's] head towards her crotch may be evidence of mild inappropriate behaviour and establishes a reason for [GSA] to be cautious for [GD] with [APG].
Thirdly, the other aspects of [GSA's] concerns are not supported by the evidence and are indicative of him seeing signs of sexual abuse that are simply not there, with [GSA] over-interpreting photographs of [APG] and [GD] together, and with [GSA] overinterpreting behaviour by [APG] that is developmentally appropriate.[59]
[59] BoM at page 2055.
The Magistrate then turned to a consultation between APG and Dr Janardhanan and the doctor's notes as to a disclosure made by APG: '[GD] is rude. She touches me over here' – points to her vulval region – 'and I don't like it'.[60]
[60] BoM at pages 2055 - 2056.
The Magistrate then made the following relevant findings:
It is important that I acknowledge the earlier body of evidence about the importance of the manner, context and content of questioning as being relevant to what conclusions can be drawn from any disclosures made. In this case, with no clarity around the nature of the conversations between [GSA] and [APG], and limited details of the further questioning by Dr Janardhanan, I am unable to reach any conclusion as for sexual harm by [GD] on account of this exchange.[61]
[61] BoM at page 2056.
By the March Particulars A5, GSA made a complaint that the Magistrate failed to consider those notes (and that goes to his Ground 1). Clearly, A5 falls away in light of the Magistrate's express consideration of that evidence.
With respect, in my view, it was open to the Magistrate to make each of the findings he did as to GSA's evidence, or allegations, as to GD's sexual abuse of APG.
The complaints which GSA made in this respect evidence his very strong disagreement with the findings (or non-findings) made by the Magistrate. They reflect his very strong view that sexual abuse of APG had occurred and, in particular, had been inflicted by GD.
With respect, however, his very strong disagreement with those findings does not constitute the identification of error on the part of the Magistrate.
The Magistrate had been, in my view, appropriately careful in assessing the disclosures which APG had made about GSA (predominantly by reference to the evidence of Dr Watts). And here, in relation to the disclosure to Dr Janardhanan, the Magistrate can be seen to be equally, appropriately careful.
I can detect no error made by the Magistrate in these respects.
GD's criminal record
GSA puts his complaints as to this as going in part to his Ground 1: see March Particulars A10.
As I understood it, it was common ground in this Court that GD's criminal record:
1.had been summonsed in the proceedings before the Children's Court;
2.was available to the parties;
3.was before the Magistrate; and
4.had not been formally taken into evidence as an exhibit.
A summons was issued by the Children's Court (at the request of GSA) to the proper officer of WA Police to produce:
All police records, notes, incidence reports, interview notes and any other documentation in your possession relating to [GD] … [62]
[62] BoM at page 1031.
That summons was answered under cover of a letter from Police Legal Services dated 16 July 2024 and received by the Court on 17 July 2024.[63] A further answer was made to that summons by Police Legal Services under cover of a letter dated 19 July 2024.[64]
[63] BoM at pages 1029, 1093.
[64] BoM at page 1091.
In the hearing before me, GSA accepted that he had seen, and had access to, GD's criminal record in the trial.[65]
[65] ts 343 - 344 and 348 - 349.
That GSA had access to GD's criminal record is also borne out by, for example, questions GSA asked of Ms McCarren.[66]
[66] BoM at pages 1661, 1662.
GSA sought to tender GD's criminal record.[67] There was no objection to that and, indeed, APG's lawyer thought it had already been included in the tender bundle.[68] It appears that the Magistrate effectively accepted the tender but did not give it an exhibit number.[69]
[67] BoM at page 1661.
[68] BoM at page 1661.
[69] BoM at page 1662.
If the premise of GSA's complaints in this respect is that the Magistrate did not have GD's criminal record before him and did not take it into account (so far as it was relevant) because it was not made an exhibit, then the above is to the contrary and the premise fails.
That the Magistrate had before him GD's criminal record was apparent from his reference to it as in his reasons quoted in paragraph [103] above.[70]
[70] BoM at page 2053.
That the Magistrate did not formally take GD's criminal record into evidence as an exhibit does not point to an appellable error where the Magistrate had it and considered it.
GD not giving evidence
This complaint finds clear expression in GSA's Ground 2: March Particulars B.
GSA issued a summons requiring GD to attend the trial as a witness.[71]
[71] BoM at pages 1263 and 1266.
At a readiness hearing before the Magistrate on 22 July 2024, a lawyer appeared on instructions from GD's guardian.[72]
[72] BoM at page 1266.
While not instructed to apply to set aside the witness summons, the lawyer made submissions to the Magistrate as to difficulties that may arise if GD appeared as a witness in the trial.[73]
[73] BoM at pages 1266 - 1267.
After hearing from the parties, including GSA, the Magistrate:
1.summarised what GSA had said the relevance of GD's evidence would be;[74]
2.considered the relevance of any evidence that GSA wished to elicit from GD;[75]
3.held that line (as to GD's upbringing by GSA's sister) could not be relevant to the question of whether APG was in need of protection;[76]
4.considered that GD had a guardian appointed as she was an incapable person and she did not want to attend;[77] and
5.held it was appropriate to set aside the summons for GD to attend the trial as a witness.[78]
[74] BoM at pages 1270 - 1271.
[75] BoM at page 1271.
[76] BoM at page 1271.
[77] BoM at page 1271.
[78] BoM at page 1271.
To understand the first three matters set out immediately above, the Magistrate noted that GSA told him that he wanted to rely on GD's evidence in two ways. Firstly, for evidence that GD had kissed APG. And, secondly, that he wanted GD to give evidence of the quality of her upbringing with GSA's sister.[79]
[79] BoM at page 1271.
Then, after further discussion, GSA indicated to the Magistrate that he was not intending to pursue the line about the 'tongue kissing' but wanted to rely more on GD's upbringing with GSA's sister.
In my view, it was open to the Magistrate to set aside the summons as he did at the readiness hearing on 22 July 2024.
In any event, I do not consider that GD's absence as a witness prevented GSA from fully ventilating his concerns and adducing all the evidence he was able to about GD's alleged sexual abuse of APG.
As the Magistrate had been informed, if GD had been called, GSA had already disavowed any intention to question her on her sexual abuse of APG.
Further, and in any event, whether or not GD had sexually abused APG was not the primary question in the Court below.
As noted, it could only be relevant to the question of whether GSA had well founded fears that APG had been sexually abused by GD. And, if his views were unfounded, whether APG would be in effect, protected from his unfounded views going forward.
For those reasons, I do not detect any appellable error in the Magistrate setting aside the witness summons to GD.
Nor do I detect any error in the way the Magistrate dealt with GSA's complaints about GD at the trial.
That is, even if the Magistrate was in error in setting aside the summons, the Magistrate's decision in these relevant respects was not affected by an appellable error in his consideration and determination of GSA's complaints about GD's behaviour towards APG. I do not detect that GSA was, realistically, prevented from putting his evidence, and concerns, as to GD's behaviour towards APG to the Magistrate.
In all of those circumstances, I do not consider that GSA's Appeal Ground 2 can be made out even if one overlooks the mis-description of GD as a 'key witness'.
GSA's sister
A number of complaints were made by GSA about his sister. They concern:
1.her being aware of and/or encouraging GD's sexual abuse of APG: April Outline [47], [52], [64], [178] - [181], [187], [206] and [224]; ts 260 and 293;
2.the need for there to be an investigation into her: April Outline [51] - [52]; ts 222; and
3.the relationship between GSA and his sister and his intention at the trial to sever all contact between her and APG: April Outline [64] and [55].
Being aware of and encouraging GD's sexual abuse of APG
By the time of the hearings before me, GSA's sister had replaced anyone at MLC as the sexual abuser of APG which had caused severe stuttering.[80]
[80] ts 196.
The result was that by the hearings in this Court, where GSA had previously been convinced that sexual abuse had occurred at MLC, he was now convinced that the sexual abuse had still occurred but had 'just' been perpetrated by a different person.[81]
[81] ts 200 - 201.
In relation to GSA's concerns or allegations against his sister at trial, the Magistrate said:
In terms of the allegations about [GSA's sister], … She is currently caring for [APG]. In relation to [GSA's sister], [GSA's] concern primarily relates to protectiveness vis-à-vis [GD]. [GSA] says that [GD] and [GSA's sister] are quite close, with [GSA's sister] having played a role in raising [GD] and being protective of her. [GSA's] case is that at best, [GSA's sister] is unable or unwilling to be protective of [APG] when it comes to [GD], and at worst, some of his comments suggest that [GD]'s behaviour may have been actively encouraged by [GSA's sister].
… when it comes to [GSA's sister], there is no cogent or independent evidence to support [GSA's] concern that she poses a risk of sexual harm to [APG].
I pause to make specific comment about the allegation made by [GSA] that he says is indicative of direct sexual assault by [GSA's sister]. This was a situation at Cottesloe Beach where [GSA] describes:
'That [APG] would offer her tongue to [GSA's sister], and they would have a little kiss there with swapping of saliva'.
The context here appears to be a game described as 'surprise attack'. It is difficult to know what to make of this in circumstances where precisely what happened and precisely what [GSA] saw of it was not fully explored, but given my findings about [GSA's] tendency to over-interpret ordinary events as indicative of sexual assault, I'm not prepared to conclude that this allegation amounted to inappropriate behaviour.[82]
[82] BoM at pages 2056 - 2057.
In this Court, GSA stated:
[51]The Magistrate did not consider that [GSA's sister] has not been investigated. [GSA's sister] did not give evidence and Dr Watts did not interview [GSA's sister].
…
[52]There was also no investigation into [GSA's sister's] role of sexual abuse by [GD]. In my opinion [GSA's sister] was fully aware of the sexual abuse of APG by [GD] and even encouraged it. Refer to my affidavit with Messenger messages attached in which [GSA's sister] simply denies [GD] doing anything wrong. [GSA's sister] also was taking APG to [GD's] villa where some of the abuse occurred and also at [GSA's sister's] house. …
[53]The Magistrate did not have reliable information/evidence to make his assessment of [GSA's sister].
[55]Regarding the above points 50 - 54, without genuine investigation of [GSA's sister] or the alleged sexual abuse/grooming or permitting [GD] to give evidence - the Magistrate should not make a decision of granting a protection order time-limited with [GSA's sister] being the carer. [GSA's sister] and I will never see eye to eye. We are not even biological the same. [GSA's sister] is adopted and she had her chance to raise 4 children and failed miserably.
With the exception of the specific instance which the Magistrate considered as quoted in [149] above, GSA did not point to any evidence before the Magistrate to support any of his allegations that his sister was aware of, or encouraged, GD's sexual abuse of APG, nor that she had, herself, sexually abused APG.
There is nothing to suggest that the Magistrate erred in concluding that:
… there is no cogent or independent evidence to support [GSA's] concern that [his sister] poses a risk of sexual harm to [APG].[83]
[83] BoM at page 2056.
Aside from the question of GSA's sister's 'direct' abuse of APG, the balance of GSA's complaints appear to be directed to:
1.buttressing his allegations against GD;
2.speculating as to what further evidence may have emerged if his sister had been investigated;
3.pointing to the inappropriateness of the Department allowing GSA's sister to care for APG after her removal; and
4.explaining why he took the view at trial that if APG was removed from him into his sister's care that he would have nothing to do with APG or his sister;[84]
Dr Janardhanan
[84] This appears to be part of GSA's Ground 9: see March Particulars I.
GSA made a number of complaints about Dr Janardhanan, namely:
1.she had not reported the cut to APG's vagina as she was obliged to: April Outline [87], [91], [149] and [150]; ts 284;
2.she did not give fully accurate or reliable evidence so as to cover up her failure to report: April Outline [87] - [89], [91], [93] and [97]: the March Particulars A2 indicated that this was part of GSA's Ground 1;
3.she had caused medical consultation notes to go missing or not to be included: April Outline [91] and [93];
4.there was collusion between her and MLC where she had two daughters attending: April Outline [96] - [98], [149] - [151] and [232]: see March Particulars A2 which indicated that GSA saw this as part of Ground 1; and
5.there needed to be an independent investigation into her for her conduct: April Outline [92] and [232].
It is not completely clear to which of his appeal grounds these complaints relate. The complaints, however, are part of the same piece of GSA's other personal attacks on individuals involved in the proceedings.
Given GSA's acceptance, at the hearings in this court, that there had been no sexual abuse of APG at MLC, it is not necessary to deal with GSA's allegations of collusion between Dr Janardhanan and MLC.
As to the cut to APG's vagina, the Magistrate stated:
That [APG] sustained a cut to her vagina is uncontroversial. It was well documented by Point Resolution, as well as in medical records; however, there has been no cogent evidence that the cut in and of itself is indicative of sexual harm or any other form of intentional harm towards [APG]. Indeed, it was Dr Janardhanan's evidence that she could draw no conclusions as to the cause of the cut.
Now, whether that was because of the limits of her expertise or otherwise, the position remains that there was no evidence before the court as to how [APG] came to sustain the cut. Noting my findings about stuttering above, I conclude that there is no evidence to support a conclusion that Amanda or other staff at Point Resolution sexually abused or posed a risk of sexually abusing [APG]. [GSA's] beliefs about that, which remained firm throughout the trial, are unfounded.[85]
[85] BoM at pages 2052 - 2053.
There is nothing in the material before this Court to suggest that the findings made by the Magistrate as to the cut to APG's vagina were not open or were not correct, save for GSA's firm belief that the cut evidenced sexual abuse.[86]
[86] That the cut was uncontroversial renderes moot A15 and A15 from the March Particulars which GSA would include in his Ground 1.
If that is correct and the findings were open, then GSA's complaints about Dr Janardhanan not reporting the 'abuse' fall away, as do the complaints about her evidence 'to cover up' her failure to report.
The complaint or allegation that Dr Janardhanan had interfered with the medical records and had deleted some, is, obviously, a very serious allegation and appears to be without foundation.
In any event, GSA accepted in the hearing before me, that he:
1.knew about the consultations (in respect of which he says notes went missing);
2.knew what occurred in those consultations; and
3.could have given evidence about those at the trial[87] (and cross-examined the doctor about them if he chose).
[87] ts 207 - 209.
Further, there was no link between 'missing' consultation notes and any reasoning, conclusions or findings drawn by the Magistrate.
Accordingly, none of those matters give rise to an appellable error.
MLC
In his April Outline, GSA complained about MLC in at least three respects, namely:
1.sexual abuse had occurred at its Early Learning Centre in November 2020: April Outline [75.1], [76.1] and [77];
2.it was involved in a cover‑up of the sexual abuse of, at least, APG: April Outline [96], [98] - [99], [103], [152] - [154] and [230]; and
3.there needed to be 'forensic investigation' into evidence which GSA considered it had provided which was false: April Outline [154].
A number of the complaints about MLC were put by GSA as going to his Ground 1: see March Particulars A2 and A3.
However, by the time of the hearings on 2 and 25 July 2025, GSA had 'concluded' that there had been no sexual abuse of APG at MLC: ts 196, 201, 237, 256, 280, 296 and 301.
This significant change of position impacts on a number of complaints which GSA made.
Firstly, and most obviously, the Magistrate's finding that GSA's beliefs that APG had been sexually abused at MLC must, now, even by GSA, be regarded as correctly characterised as 'unfounded'.
Further, the complaints made as to MLC covering up sexual abuse of APG fall away, as do GSA's complaints about the collusion or conspiracy between MLC and Dr Janardhanan.
Point Resolution Childcare Centre
As recorded by the Magistrate, in the trial below GSA was certain that APG had been digitally penetrated and otherwise sexually abused at the Point Resolution Childcare Centre (run by the City of Nedlands).[88]
[88] BoM at page 2052.
As also recorded by the Magistrate (and quoted at [156] above), it was uncontroversial that APG had sustained a cut to her vagina which was documented by Point Resolution Childcare Centre.[89] GSA stated that the cut to APG's vagina happened on 18 November 2020: April Outline [116].
[89] BoM at page 2052.
In his April Outline, GSA stated that it was 'not totally impossible' that someone from MLC had told someone at the Point Resolution Childcare Centre 'to stick their finger up APG', and all he wanted was a genuine investigation: April Outline [100].
As I understand it, the only matters to which GSA points to support his allegation that there had been sexual abuse of APG at the Point Resolution Childcare Centre is the cut to APG's vagina and her developing a stutter. The cut to the vagina has been dealt with elsewhere in these reasons and I consider the stutter below.
GSA also insinuated that the City of Nedlands' records had been hacked or deleted so as to cover for the perpetrator who had abused APG: April Outline [102] and [196] - [198].
A further complaint appears to be that the Magistrate should have found, or should have investigated whether, the claimed incident at the Point Resolution Childcare Centre and that at MLC were connected: April Outline [100] and [155].
Necessarily, GSA's complaint that the Magistrate did not investigate the connection or relationship between the sexual abuse of APG at the two child care centres falls away with his acceptance that there was no sexual abuse at one of them.
So, the failure of the Magistrate to find, or investigate, the linkage between the two 'incidents' cannot sensibly be asserted to be an error.
As to the balance of the complaint about Point Resolution Childcare Centre, its only relevance could be that it demonstrated (if proved) that GSA did not have unfounded beliefs that APG had been sexually abused.
However, with the Magistrate finding (as I say was open to him) that neither the cut nor the stutter established sexual abuse, the complaints made under this heading do not point to any error.
Unfounded beliefs as to sexual abuse
GSA complains that any finding by the Magistrate that GSA had unfounded beliefs of sexual abuse cannot be correct because the Magistrate should have found that the sexual abuse had occurred and so his beliefs were 'founded': April Outline [74] and [220].
Because, on GSA's contentions, sexual abuse had occurred by others, his 'unfounded' beliefs' as found by the Magistrate would be 'bunkum' as he put it in the April Outline [74].
To establish the sexual abuse had occurred, GSA relied initially on sexual abuse having occurred:
1.at MLC in November 2020: April Outline [75.1];
2.at the Point Resolution Childcare Centre in November 2020: April Outline [75.2]; and
3.by GD between 2021 - 2022 on multiple occasions with the full knowledge of GSA's sister: April Outline [75.3].
As part of his complaints that his beliefs were not unfounded, GSA pointed to four 'signifiers' of sexual abuse, namely:
1.APG's stuttering: April Outline [112] - [122] and [137];
2.APG telling GSA that 'Maddie' [from MLC] tickles me here [with an indication to her vaginal area]: April Outline [122], [129] and [138] - [139];
3.the cut to APG's vagina: April Outline [140]; and
4.interactions with GD that GSA had observed or was told about: April Outline [141].[90]
APG's stutter
[90] I deal with the 'signifiers' said to arise from GD with GSA's other complaints about her.
GSA was convinced at the trial, and remains so convinced, that the temporary stutter which APG had (on his telling) in October and November of 2020, was evidence of trauma, namely sexual abuse: see April Outline [112] - [122].
GSA sees these complaints as going to his Ground 1: see March Particulars A9.
In relation to the question of the stuttering, the Magistrate said:
On the question of stuttering, several witnesses throughout the trial gave evidence that stuttering in and of itself is not suspicious for sexual assault. This includes Dr Watts, who gave evidence that there was a developmental aspect to a child of [APG's] age going through a period of stuttering.
Despite hearing that evidence, [GSA] maintained in his cross-examination that stuttering is indicative of sexual assault. He remained firm in this view by the end of the trial.[91]
[91] BoM at page 2049.
GSA clearly has firm beliefs as to the significance of APG's stutter and clearly draws a direct link between its occurrence and the acts which (at least at trial) he maintained had occurred at MLC and at the Point Resolution Childcare Centre in October and November of 2020.
However, the Magistrate heard evidence about the stutter and stuttering more generally and GSA was able to test that evidence and/or call his own evidence on the matter.
That the Magistrate, in the passage quoted above, has come to a conclusion on the stuttering that GSA does not agree with, does not point to any appellable error.
The Magistrate, on the evidence, was able to conclude that APG's stuttering was not a signifier of sexual abuse. I have dealt with the findings as to the other 'signifiers' elsewhere in these reasons.
Dr Watts
It may be seen that some of the complaints about Dr Watts, go directly to Appeal Grounds 4 and 5. However, some may indirectly go to other appeal grounds.[92]
[92] See, for example, A6 of the March Particulars which go to GSA's Ground 1.
Dr Watts is a clinical psychologist endorsed in forensic psychology who was appointed by the Children's Court to be an expert pursuant to s 139 of the CCS Act.
That appointment took place pursuant to consent orders dated 28 March 2024 which were signed by the CEO and APG's lawyers and GSA. Those consent orders were annexed to the order made by the Children's Court on 1 May 2024 (Consent Orders).
Pursuant to that appointment, Dr Watts provided:
1.an 'Independent Psychological Report' dated 2 July 2024;[93] and
2.an Addendum Report dated 24 September 2024.[94]
[93] BoM at page 979.
[94] BoM at page 998.
He also gave oral evidence at the trial and was cross‑examined by GSA.
A number of complaints were made in this Court by GSA about Dr Watts, namely:
1.the report he produced was flawed because of its scope: April Outline [85], [110] and [201]; ts 245; and he was the ‘wrong' expert: April Outline [111];
2.he did not have GD's criminal record or had not considered it when expressing his opinion: April Outline [41], [42], [81] and [110]; ts 245 and 285;
3.additional information was sent to him by APG's lawyer which was not sent to the parties, and so Dr Watts was secretly interfered with: April Outline [43], [84] and [202]; ts 262; and
4.there were documents not provided to Dr Watts: April Outline [95]; ts 220 and 290 - 291.
In assessing the complaints made by GSA about Dr Watts, it must be borne in mind the use to which the Magistrate put Dr Watts' evidence.
Firstly, the Magistrate used Dr Watts' evidence in his assessment of the disclosures or statements made by APG as to whether she had suffered sexual abuse - particularly at the hands of GSA. In this respect, as seen above, the Magistrate accepted Dr Watts' evidence 'in favour' of GSA: that was against the Department's case, that he had sexually abused APG.
Secondly, the Magistrate used Dr Watts' evidence in his assessment of some of the matters which GSA said established that APG had been sexually abused by GD.
Thirdly, the Magistrate used Dr Watts' evidence in his determination of the predictive questions which arose under s 28(2)(c) of the CCS Act.
Dr Watts: scope of his evidence & the wrong expert
As noted, the brief to Dr Watts was agreed by the parties to the Children's Court proceedings, including GSA. So, GSA's complaints as to the scope of Dr Watts' evidence must be seen in that light: cf April Outline [85] and [110].
From the agreed instructions or brief to Dr Watts, it may be seen that aside from issues concerning GSA, the expert was asked by the Consent Orders:
(f)Whether the child is at risk of physical, sexual, psychological, emotional or other harm or abuse from any person, and if so:
(i)what is the nature and extent of the risk of harm?
(ii)whether there is any means by which that risk may be mitigated?
(iii)are there any contributing factors that may exacerbate the risk of harm?[95]
[95] Minute of consent orders dated 28 March 2024 and filed 9 April 2024 which were attached to the order of the Children's Court made 1 May 2024 appointing Dr Watts pursuant to to s 139 of the CCS Act (emphasis added) (Consent Orders).
In this respect, it is helpful to quote from GSA's April Outline as follows:
85.Dr Watts should keep his unresearched opinions to himself. As mentioned, in my opinion Dr Watt's puts 'non-confrontation' preference before truth. Much of the Magistrate decision is based on Dr Watts opinion and Dr Watt's should not offer an opinion unless he has researched it. The sexual abuse allegations and interviewing those allegedly involved were outside his scope of work.
The evidence includes:
(1)stuttering (suddenly commenced then suddenly stopped)
(2)disclosures from my daughter APG
(3)cut inside APG vagina examined by doctors
…
(5)my sighting of [GD] holding APG's head in her [GD's] crouch [sic]
(6)tongue kissing by [GD] to APG
… [96]
110… As such Dr Watts did not interview [GD], [GSA's sister], [three others from the Point Resolution Child Care Centre]. This was outside his scope of work. Dr Watts was appointed to conduct a risk assessment on me.
…
111The Magistrate did not properly consider that the wrong type of expert was appointed. The problem with appointing a forensic psychologist, like Dr Watts, is he is anti-conflict. He sees the issue of stigma to APG if she was to be told about sexual abuse. Hence, he puts his anti-conflict preference before that of the truth. A better choice of expert would have been a forensic investigator with skills in computer data retrieval.
[96] GSA nominated 10 items but I have excluded those items which are his earlier reporting of things to child care centres, Crisis Care, Police etc, rather than being any direct evidence.
Further, it is significant that GSA did cross‑examine Dr Watts in the trial and so had the opportunity to challenge or clarify any aspect of his evidence or its scope and the extent of his expertise.
It is also relevant in assessing GSA's complaints as to the scope of Dr Watts' evidence to consider the following from Dr Watts' Psychological Report.[97]
[97] BoM at page 979.
Dr Watts recorded that at the first formal interview with GSA for the purposes of the reports:
When [GSA] arrived for the interview, his position was that 'we are here to get to the truth' and was indicating the purpose of my involvement was essentially a forensic review of all the evidence. I discussed with him that I was not appointed in that capacity and my role was according to the Terms of Reference which were predominantly a risk assessment of himself and a review of the child. In the circumstances of this case, I allowed [GSA] to discuss the bulk of the 'truth' which he was wanting me to assess. In this report I have put forward opinion around a number of the key points of this case recognising that it is beyond the scope specifically requested but, in my opinion, likely to be beneficial to the Court. I would also like to point out that I have not attempted to address all issues but highlight key dynamics.[98]
[98] BoM at page 980 [2].
In his first report, in answering specific questions posed by the instructions, Dr Watts opined:
1.'In this particular case, the father was attempting to address what he perceived a [sic] risk. I believe the danger is inappropriately perceiving risk rather than not acting on risk.'[99]
2.'As explained through this report, the father is misperceiving risk and his reaction to [GD] and other people has been quite unusual.'[100]
3.'I do NOT have a recommendation regarding the placement of the child. I am not satisfied that there is sufficient evidence for sexual risk for the child not to be returned to the father. However, the father's beliefs and views do cause me concern about the future impact on the child's development and understanding and in my opinion, this needs to be tested by the Court to see if it meets criteria of unacceptable risk'.[101]
[99] BoM at page 991 [80].
[100] BoM at page 991 [82].
[101] BoM at page 992 [86].
From the above review, it is apparent that GSA knew before the trial what the scope of Dr Watts' evidence would be. GSA had signed the Consent Orders and Dr Watts had explained to him how Dr Watts saw his task. Further, of course, GSA had Dr Watts' reports at the trial and did cross examine him. Further, there was nothing before me to suggest that if GSA had formed the view that another, or different, or 'correct' expert should have given evidence below, that he was prevented from calling such evidence.
With that knowledge before the trial, and opportunity at the trial, it is difficult to accept these complaints now made by GSA. GSA included his 'wrong expert' contention within Ground 1: see March Particulars A8.
I do not consider that GSA has made out any error as to his 'wrong expert' contention. And, further, I do not understand the contention to support Ground 1 in any event.
Further, GSA was the 'beneficiary' of Dr Watts' opinion as to the 'disclosures' made by APG concerning sexual abuse by GSA. In my view that makes his criticisms of Dr Watts' expertise now more a product of disagreement with those opinions of Dr Watts that GSA does not accept.
I have dealt elsewhere with GSA's complaints about the lack of investigations into other actors. I do not repeat here the reasons I have concluded that the lack of those investigations does not point to any error. Those reasons, in my view, equally apply to why the complained-of lack of investigations by Dr Watts does not point to any error.
However, at least in respect of GD, Dr Watts did give evidence that he had considered and opined on the allegations GSA had made about GD and whether they 'looked like abuse or grooming'[102]. It was plain from Dr Watts' evidence that GSA had made plain to him what his (GSA's) concerns were in relation to GD[103].
[102] BoM at page 1993.
[103] See, for example, BoM p 1991.
In any event, I do not understand how the lack of Dr Watts conducting the investigations that GSA wanted, in all the circumstances, indicates in any way that the Magistrate was in error in using the expert's evidence in the way that he did.
Dr Watts and GD's criminal record
GSA asserted that the 'withholding' of GD's criminal record went to his Ground 5: see March Particulars E.
GSA's complaints in this respect need to be put into the context of information about GD given to Dr Watts before his first report about GD – see his first report at [20][104] and [33].[105]
[104] BoM at page 982.
[105] BoM at page 984.
By the Consent Orders, Dr Watts had leave to inspect:
1.any summonsed material held by the Children's Court; and
2.the files kept by the CEO in relation to GSA and APG, including any reports obtained by the Department of Communities.[106]
[106] Order 4 of the Consent Orders.
Further, APG's lawyer by those Consent Orders was permitted to provide to Dr Watts:
1.all documents filed in the Children's Court proceedings; and
2.any document provided to APG's lawyer by any party to the proceedings.[107]
[107] Order 5 of the Consent Orders.
In this Court, APG filed a list of the seven letters (attaching documents) which had been supplied to Dr Watts[108].
[108] Filed 15 May 2025.
In his second report dated 24 September 2024[109], Dr Watts noted that he had been: 'provided with a copy of documents which have been put together for trial, but I have not yet reviewed those, preferring to conduct that review prior to the time of giving evidence.'[110]
[109] Independent Psychological Report Addendum Report – Observation: BoM at page 998.
[110] Independent Psychological Report Addendum Report – Observation: BoM at page 998 [2].
In the course of his evidence, Dr Watts was asked whether he had seen GD's criminal record: BoM p 1993. His answer was that he didn't recall seeing it but it was clear in his answer that he did not think it had been made available to him.
After working through the chronology of the documents which were provided, or made available, to Dr Watts, counsel for APG before me submitted that the position was that while Dr Watts had not considered GD's criminal record, it had been made available to him[111]. I accept that submission. (I also note, that Dr Watts gave an explanation as to why, in effect, he did not regard GD's criminal record to be a significant document to his evidence.[112])
[111] ts 338.
[112] BoM at pages 1993 -1994.
Consequently, it was apparent to the Magistrate that Dr Watts had not considered GD's criminal record and why he did not consider it material. Again, none of that points, in my judgement, to any error on the part of the Magistrate in the way that he dealt with Dr Watts' evidence.
I do not consider that GD's criminal record was 'withheld' from Dr Watts. Further, for the reasons I have set out, I do not consider Dr Watts having not considered GD's criminal record, if that occurred, gave rise to any appellable error.
Interference with Dr Watts
Appeal Grounds 4 and 5 are, as I understand it, directed to Dr Watts' evidence. It must be noted that this contains a serious allegation made against a legal practitioner by GSA.
As I understand it, the 'secret interference', is alleged to have occurred by APG's lawyer sending additional information to Dr Watts on Monday, 21 October 2024: April Outline [43], [84], [202], ts 262.
Appeal Ground 4 asserts that after being secretly interfered with, Dr Watts changed his opinion. In context, this is also a serious allegation.
Given that, surprisingly, nowhere in his materials before me, or in his submissions, did GSA indicate what change of opinion he contended occurred.
There is nothing in what GSA has put before this Court that seeks to, or does, demonstrate any change of opinion on the part of Dr Watts. So, Appeal Ground 4 fails at the outset.
In any event, the allegation of secret interference (or any attempt thereto) also is unsustainable.
APG's counsel accepted before me that the letter sent to Dr Watts on 21 October 2024[113] was not copied to GSA and submitted that was by oversight.[114]
[113] BoM at page 1022.
[114] Second respondent's submissions filed 27 May 2025 [16]; ts 330.
The letter of 21 October 2024 enclosed five documents (and included three videos). I note that by that time, the Court below had sat for five days at the end of July and the beginning of August 2024. The trial resumed on 22 October 2024.
However, each of those five items was (separately from the letter to Dr Watts of 21 October 2024) supplied to GSA and the CEO on or about the date which each bore[115] (noting that the fifth document was GSA's own affidavit of 21 October 2024). And, the videos were played at trial.
[115] Legal Aid’s email to my Chambers dated 25 July 2025 at 3.44pm.
In any event, with the possible exception of the third document referred to in the letter of 21 October 2024 (Contact Feedback Report of 11 October 2024),[116] GSA accepted in the hearing before me that he had received those documents separately during the course of the trial.[117] On balance I would find, if I needed to, that GSA had received that third document via an email sent to him.[118]
[116] BoM at page 1022.
[117] ts 332 - 333.
[118] Legal Aid’s email to my Chambers dated 25 July 2025 at 3.44pm.
So, GSA had received the documents which were sent to Dr Watts, even if it is accepted that GSA did not receive the covering letter from APG's letter to Dr Watts of 21 October 2024. In those circumstances, I accept the submission that the covering letter was not sent to GSA or the CEO by oversight.
GSA did not seek to identify the use to which Dr Watts had made of any of the further five documents. Nor did he assert that he would have conducted his trial any differently if he had known those documents had been sent to Dr Watts.
In all of those circumstances, there is nothing of substance in Grounds 4 or 5 or these complaints and they point to no appellable error.
Dr Watts: documents not provided to him
The complaint, as I understand it here, is really two-fold.
Firstly, GSA says that there were certain documents which Dr Watts was not shown[119] – and there is an insinuation that he was not shown them deliberately by APG's lawyers.
[119] See April Outline [95], [96].
By his March Particulars at E, the missing document was GD's criminal record. I have considered that above. However, by the time of his April Outline, it appears that different documents were said to be missing within Ground 5: and I have considered those below.
It is unclear what GSA says is the significance of the missing documents, and how they were, or could have been, material to Dr Watts' evidence.
There is no suggestion on the part of GSA that he could not have put the 'missing' documents or the substance of them to Dr Watts in cross examination, or that he could not have put to Dr Watts that his reports were flawed (or challenged him to that effect). And, it appears, that neither of those matters were raised before the Magistrate as reasons not to accept any part of Dr Watts' evidence.[120]
[120] ts 220.
Further, in my judgement, there is nothing in these complaints to suggest that Dr Watts' evidence was in any way flawed. There is nothing to suggest that the 'missing' documents (or the contents of the same) were material to any opinion which Dr Watts expressed.
And, there is nothing to suggest that there had been some deliberate withholding of those documents by APG's lawyers so as to interfere with Dr Watts' evidence.
Secondly, GSA says that Dr Watts was rushed in producing his reports and so they were 'uncooked or half-cooked'[121]
[121] ts 220.
Other than the mere assertions, there is nothing to suggest that Dr Watts' reports were so flawed. And, there was nothing to stop GSA from cross‑examining Dr Watts to that effect.
There is nothing in the material, in my judgement, to suggest that (by reference to these complaints) the Magistrate made any error in using Dr Watts's evidence in the way that he did.
Discussions with APG re sexual abuse
As quoted in paragraph [32] above, in evaluating the risk of future emotional harm, the Magistrate found that APG had been exposed to GSA's views as to whether she had been sexually abused[122] and would likely be exposed to them in the future.[123]
[122] BoM at page 2060.
[123] BoM at page 2060.
At heading 'F' of the April Outline[124], GSA complained that the Magistrate 'made false speculation about the future without genuine justification and/or proof'. GSA stated that it appears this is tied to 'a belief that [GSA] will tell APG about the alleged attacks'.[125]
[124] At page 5 of the April Outline under F.
[125] Unnumbered paragraph at page 5 of the April Outline under heading ‘F’.
It may be then that the complaints made here go to Grounds 3 and 8: I note that GSA saw these complaints as going to Ground 3: March Particulars C.
GSA stated in his April Outline that he had not informed APG about:
1.the MLC/Point Resolution Childcare incidents;[126] and
2.as to what GD and GSA's sister had done to her (APG).[127]
[126] April Outline [58], [59], [72].
[127] April Outline [59]. See also March Particulars C.
GSA stated in his April Outline that:
I had very minimal past conversation with APG about the attacks. The conversations were information gathering only.[128]
[128] April Outline [128].
GSA then sets out at H12(1) - H12(7)[129] of the April Outline what I take to be what he accepts he discussed with APG.
[129] At page 12 of the April Outline; see also April Outline [11].
I have quoted at [32] above, the Magistrate's findings about whether APG had already been exposed to GSA's views about sexual abuse. It is important to note that the Magistrate did not limit his findings to what GSA had told APG. Appropriately, in my view, the Magistrate considered the broader question of 'exposure'.
GSA gave evidence below as to both what he told APG and what he had done, as well as to what, relevantly, he intended to do in the future (including by his evidence which was within his MFI-7: discussed below).
Clearly, GSA does not accept the findings which the Magistrate made relevantly on this aspect. That does not, of itself, point to an error.
In my view, it was open on the evidence for the Magistrate to reach the conclusions which he did as to whether, and how, APG had already been exposed to GSA's views about her having suffered sexual abuse.
Past harm by GSA
Leaving aside the matters I have considered under the previous heading, a good number of GSA's complaints or submissions in this Court were addressed to allegations or suggestions that he had inflicted harm on APG. These need to be put into the context, as set out above, that the Magistrate did not find that GSA had perpetrated any sexual harm on APG and found that there was limited evidence that APG had already suffered emotional harm.
Nonetheless, many complaints or submissions were made by GSA as to allegations or evidence of abuse or harm made against him, but which were not found by the Magistrate to be established: April Outline [62] - [63], [66], [68], [71], [104] - [106], [109], [161] - [167], [171] - [174], [189] and [193]. These complaints are, at least in part, seen by GSA as going to his Ground 1: see March Particulars A17.
No doubt GSA continues to be aggrieved by the allegations put against him that he had sexually abused APG. But once the Magistrate's decision is understood in this respect, many of the complaints or submissions identified immediately above fall away.
To counter those allegations, many of his submissions were addressed to matters which were not in issue in the trial, namely GSA's approach to parenting generally. For example, there are a number of submissions made as to GSA's protectiveness of APG from physical harm: see, for example, April Outline [39].
In many of these submissions, GSA addresses his 'protectiveness' of APG. The submissions are to the effect that he is appropriately protective of her[130] and that he parents her well or appropriately.[131] These complaints are, at least in part, seen by GSA as going to his Ground 1: see March Particulars A17.
[130] See, for example, April Outline [19], [21] – [24], [39].
[131] See, for example, April Outline [25], [29], [35].
With the exception of the question as to whether he would likely protect APG from the harm of being exposed to his views on sexual abuse going forward, matters going to his general parenting or protectiveness of her in a general physical or welfare sense were not in issue in the trial.
Further, there are submissions addressed by GSA to his appropriate responses to the sexual harm he says APG has suffered: see April Outline [26], [27] and [34]. These must, of course, be assessed in light of the findings which the Magistrate made as to whether there was a foundation for those beliefs.
The Magistrate's findings, complained about in this respect, were generally in favour of GSA, and so cannot give rise to an appellable error agitated by GSA.
At most, these complaints may provide some background or context for some other complaints which GSA makes about the trial and findings below.
For the above reasons, I do not consider that the complaints or submissions grouped under this heading point to any error.
Magistrate's misinterpretation of s 28(2)(c)(iii) and speculation as to future harm
The submission as to the misinterpretation as to future harm was made in the April Outline [18] - [19], [20], [26], [28], [33], [39] and [218].
Notwithstanding that these complaints are framed as the Magistrate misinterpreting statutory provision, which would be an error of law (to which the correctness standard applied), I do not think that is the substance of GSA's complaints.
For the avoidance of doubt, in my view, the process of reasoning which the Magistrate adopted does not indicate any misinterpretation of the statutory provision.
From the outline of the Magistrate's reasons, as set out above, the Magistrate, in my view, correctly applied the statutory provision. That is, the questions and factors which the Magistrate worked through were in accordance with the statutory provision.
So, I do not detect any error of law in the approach taken by the Magistrate on the correctness standard.
I have rather taken the gravamen of these complaints and submissions to be that the finding that APG was likely to suffer harm in the future and that GSA was not likely to protect her from that harm was not open on the evidence and so, without a basis, the finding was made in error.
It appears that GSA puts at least some of these complaints under his Ground 8: see March Particulars H.
The misinterpretation asserted then appears to be that the finding could not be made that GSA had not protected or was unlikely or unable to protect APG from further harm.
The complaint seems to be that any 'future harm' was purely speculation on the part of the Magistrate: April Outline [61], [71], [73] and [210].
There appears to be a submission here, also, that there could not be a finding as to future harm without there being a finding to there being past emotional harm: April Outline [65], [71] and [73].
Allied to the submissions as to the misapplication of s 28(2)(c)(iii) of the CCS Act is, I apprehend, is the submission made most clearly in the April Outline at [65], namely:
For a child to be removed from the care of her parent, the level of emotional harm would need to be at a high level. There would need to be a substantial amount of evidence to show past emotional abuse.[132]
[132] See also April Outline [4], [71], [73], [212].
I do not accept the submission that there could not be, as a matter of law or fact, a finding of future harm unless there had been a finding of post harm.
I have set out in paragraph [36] above, the Magistrate's findings as to the likelihood of future emotional abuse and/or harm. I have not repeated that quotation here. However, in my view, the four pertinent findings made[133] were open to the Magistrate to find.
[133] BoM at pages 2060 - 2061.
Each of the first three, to the extent that they were matters which the Magistrate had found to have existed[134], was open to be found by the Magistrate.
[134] Namely: 1. GSA’s unfounded and idiosyncratic views; 2. APG having been exposed to those views; and 3. GSA continuing to firmly hold those views.
The balance of the third and the fourth findings were predictive findings, as was required under the statutory provisions.
In my view, it was open to the Magistrate to make those predictive findings.
While GSA completely disagrees with the Magistrate's predictive findings (as well, of course, with the first three findings to the extent they involve findings as to what had occurred), no error, as such, is pointed to by GSA. Nor, can I detect an error.
In my view, the predictive findings involved elements of fact, degree and value judgements. I consider they attract the second standard of appellate review.
For completeness here, I note here the submission made at [7] of GSA's April Outline which was: 'The best interest of APG cannot be served by being taken away from myself as her father'. Part of these complaints appear to be put by GSA as going to his Ground 9: see March Particulars I.
I have set out in paragraph [40] above the Magistrate's conclusions as to what was in the best interests of APG in his consideration as to whether a protection order should be made (and what its duration should be, if made), compared with making no order.
I have not repeated those passages here.
GSA did not direct many specific or particular submissions to this part of the Magistrate's reasons. I say that without any criticism of him.
I have carefully considered the reasons of the Magistrate going to whether a protection order should be made and its duration.
I have not detected any error in the approach which the Magistrate took to that assessment exercise. To my reading, the Magistrate carefully made the assessment and reached a conclusion which, on its face, did not indicate any error.
Problems with Children's Court transcript
GSA complained that the transcript of the Children's Court proceedings did not reflect what was said in Court: April Outline [199]; ts 258 - 294. It appears GSA sees these complaints as going, at least in part, to his Ground 1: see March Particulars A16.
On 12 February 2025, Forrester J ordered that GSA:
… file and serve marked up transcripts from the Primary Court showing the approximate places where errors in transcription or omissions or alterations are said to have occurred.[135]
[135] Order 1 of the Orders of the Hon Justice Forrester made 12 February 2025.
On 13 February 2025, GSA filed a document setting out '19 discrepancies' in response to that order.
In the April Outline, GSA stated that since that document 'more have since been found' without any further articulation of what they might be: April Outline [199].
GSA had trouble in the hearing accepting that the transcript of court proceedings would never be completely correct.[136] He wanted access to the audio recording of the trial or for this Court to conduct an investigation and compare the audio recording with the transcript.[137]
[136] ts 259.
[137] ts 258 - 259.
I have considered GSA's document filed 13 February 2025. With respect, none of them appeared to me to be material to any of the 'substantive' complaints which GSA agitates in this appeal.
Discrepancies in the transcript would have to be, in my view, both significantly erroneous and support a submission as to the Magistrate having made an appellable error such that there had been a miscarriage of justice. None of the '19 discrepancies' in my view, fall into that category.
Applications to adduce further 'evidence'
GSA sought to introduce in this Court a number of further documents by way of evidence. These were marked for identification during the hearings before me.
For the purposes of considering whether to allow in the further 'evidence', I have firstly considered whether the documents sought to be adduced could be probative of the issues in the appeal.
In the result, I have not needed to consider or apply the distinction between fresh and new evidence in the context of s 40(1)(e) of the Criminal Appeals Act 2004 (WA) and the rather limited circumstances in which an appellate court might receive evidence which was not before the Court below.
MFI-1
This item contained the following:
1.an application in an appeal dated 27 June 2025;
2.attachment 1, which contained emails passing between GSA and the Claremont Medical Centre between 4 April 2025 and 27 May 2025; and
3.attachment 2, being an email dated 1 July 2024 between GSA and the solicitors for the CEO and APG.
GSA said that MFI-1 superseded his earlier application with a set of documents filed on 29 April 2025.[138] I have not considered that application of 29 April 2025 further accordingly.
[138] ts 191.
The emails which were attachment 1 all, obviously enough, significantly post‑date the trial and seek to either agitate GSA's issues with Dr Janardhanan, or seek access to certain documents.
It is not clear at all to me how this Court would be assisted by taking into evidence those emails. It may be noted, of course, that Dr Janardhanan gave evidence at the trial and was available to be cross‑examined by GSA and, indeed, was so cross‑examined.
That is, the emails have, on their face, no probative value.
As to attachment 2, this email agitated issues which GSA sought to agitate with the lawyers for CEO and APG prior to the trial commencing.
The agitation of those issues in an email with the lawyers does not evidence any of the matters GSA complains about in that email and can be of no assistance to this Court.
I will not admit into evidence MFI-1.
MFI-2
MFI-2 was a seven page document which contained emails between GSA and MLC between 3 - 5 November 2020.[139]
[139] It was marked for identification at ts 193.
Most of the emails in MFI-2 were, in the result, already in the BoM at pages 334, 335 and 393. However, not all were. Apart from administrative matters such as confirming APG's enrolment, all of the emails which may be considered of substance were about APG's stutter and were already before the Court in the BoM.
Given that all of the relevant parts of the emails are already in the BoM, the other emails in MFI-2 are not, on any view, probative to any issue in the appeal.
I will not admit them into evidence.
MFI-3
MFI-3 is an email dated 10 April 2025 from GSA to a detective seeking that the detective locate a photo of the cut to APG's vagina.[140]
[140] The email was marked for identification at ts 194.
As noted, that there was a cut to APG's vagina was uncontroversial in the trial below. The photo itself could not add anything of probative value to the matters in the appeal. If that is correct, then an email requesting a copy of the photo could not be probative in the circumstances of this case.
MFI-4
MFI-4 is a seven page document which is headed 'Report for the Care Plan Meeting' and dated 19 June 2025.[141]
[141] It was marked for identification at ts 195.
This is a document which GSA prepared this year and was not (obviously) in evidence before the Magistrate.
This document is, self‑evidently and as confirmed by GSA, his notes as to his current plans for APG if she were to be returned to him. It also contains similar assertions or contentions to those contained in his April Outline - both as to what he says occurred at the relevant times and his observations on certain witnesses and the process before the Magistrate.
It can add nothing of probative view to the appeal and I will not take it into evidence.
MFI-5
This is a four page document which is comprised of:
1.an email from GSA to my associate dated 16 July 2025;
2.a WA Police confidential 'detected incidents report' regarding an incident said to have occurred on 22 July 2024;
3.an extract from a statement made to Police; and
4.an extract from the transcript of the trial.
As GSA accepted, the contents of his email to my associate of 16 July 2025 and the attachments were not before the Magistrate and were in no way taken into account by the Magistrate.
Simply, the matters in MFI-5 were not part of the Magistrate's consideration and are not relevant to any matter in the appeal. Consequently, I will not take MFI-5 into evidence.
MFI-6
This is a three page document which contains a series of emails on 17 July 2025 from GSA to a medical practitioner which were then forwarded under an email to my associate dated 21 July 2025.
The emails to the medical practitioner and the email to my associate deal with matters that GSA says occurred this year and seek to reagitate certain factual matters from times before the trial below.
To the extent that they seek to make complaint or agitate factual matters, they are no more than GSA's contentions which he has made elsewhere including, extensively, in the April Outline.
The emails can add nothing of probative value in the appeal and I have not taken them into evidence.
MFI-7
This is a four page document which was handed up on 25 July 2025 by GSA and is extracts from the transcript in the Court below - namely at ts 171, 172, 84 and 327.
MFI-7 was not handed up, as I understand it, to be included as evidence but was by way of an aide memoire to submissions that GSA was making.
However, to be clear, I have not taken that transcript into evidence.
Application dated 5 June 2025
In addition to the above MFIs, GSA made an application on 5 June 2025 to adduce an email string between him and the associate to Forrester J who was managing the appeal in May 2025.
Obviously, what GSA said to the associate by those emails could not be evidence and could only be, at the highest, submissions. On review, almost all of the matters contained in GSA's emails are matters which GSA agitated by his April Outline or in oral submissions before me.
For the avoidance of doubt, I would not admit the attachments to GSA's application dated 5 June 2025 into evidence in the appeal.
Disposition
Rather than strictly dealing with GSA's nine appeal grounds, I have, above, endeavoured to deal with his complaints to see if any of them pointed to an appellable error.
For the above reasons, I do not consider that any of the matters about which GSA complains, whether within the appeal grounds or not, discloses an appellable error.
In those circumstances, I would not grant leave to GSA on any of his appeal grounds and I will dismiss his appeal.
I will hear the parties, if needs be, as to any further orders beyond the dismissal of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
9 SEPTEMBER 2025
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