HR v CEO of the Department of Communities
[2022] WASC 77
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HR -v- CEO OF THE DEPARTMENT OF COMMUNITIES [2022] WASC 77
CORAM: ARCHER J
HEARD: 16 FEBRUARY 2022
DELIVERED : 5 APRIL 2022
FILE NO/S: SJA 1053 of 2020
BETWEEN: HR
Appellant
AND
CEO OF THE DEPARTMENT OF COMMUNITIES
First Respondent
MS
Second Respondent
MRMS
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE VOSE
File Number : PC 342 of 2013
Catchwords:
Application for leave to appeal - Appeal against decision of the Children's Court to make protection order (until 18 years) - Hearing proceeded ex parte - Failure to give reasons - Decision only reasonable outcome - No miscarriage of justice
Legislation:
Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | J Buller |
| Second Respondent | : | No appearance |
| Third Respondent | : | A G Spashett |
Solicitors:
| Appellant | : | Not applicable |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Not applicable |
| Third Respondent | : | Platinum Legal |
Case(s) referred to in decision(s):
AC v The Chief Executive Officer of The Department for Child Protection [2015] WASC 477
Albert & Plowman [2020] FamCAFC 23
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v W [2021] WASCA 180
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
MJW v The Chief Executive Officer of The Department for Child Protection [2012] WASCA 221
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SL v Chief Executive Officer of the Department for Child Protection and Family Support [No 2] [2016] WASC 97
Stone v Braun [2015] WASCA 103
Webb v Tang [2021] WASC 344
WM v CEO for Department of Communities [2021] WASC 325
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
ARCHER J:
Overview[1]
[1] Except where specifically footnoted, the exhibits which establish the following facts are identified (by reference to the Appeal Book tab numbers) in the First Respondent's Outline of Submissions and List of Authorities filed 1 October 2021 (CEO's Submissions) Annexure A.
The appellant HR seeks to appeal against a protection order made by Magistrate Vose on 2 July 2020, in relation to a child MRMS (child). The appellant is the mother of the child. The second respondent is the father. The child is the third respondent.
The child was born on 4 December 2012. He is now 9. When he was still a baby, he was taken into provisional protection and care under s 37 of the Children and Community Services Act 2004 (WA) (CCS Act). When he was 11 months old, he was placed with foster carers, Mr and Mrs F. He has lived with them ever since, and they remain committed to caring for him long term.[2]
[2] Exhibit 1.2 [81].
After the child was taken into provisional protection and care, the first respondent (CEO) made a number of applications for protection orders to, in effect, extend the time in which he would remain in care. The Children's Court made a number of protection orders for limited periods of time.
In August 2018, the CEO filed an application to revoke the time limited protection order that was then in force and replace it with a protection order that would continue until the child was 18 years of age (Application). On 20 February 2019, after several mentions, the Application was listed for trial commencing on 29 July 2019. Thirteen days before the trial was due to commence, the appellant sought that the trial be adjourned. It was.
In September 2019, the trial was listed for a second time to commence on 4 December 2019. Less than a week before the trial was due to commence, the appellant sought that the trial be adjourned. It was.
On 5 February 2020, the trial was listed for a third time to be heard from 29 June 2020 to 1 July 2020. Less than a week before the trial was due to commence, the appellant sought that the trial be adjourned. It was, but only for a short time. The trial was relisted (for the fourth time) to be heard from 2 to 4 July 2020.
On 1 July 2020, the appellant provided a medical certificate to the Children's Court registry by email. She requested that the trial listed for 2 to 4 July be vacated and re-listed for 2 to 4 September 2020.
On 2 July 2020, the proceedings came before Magistrate Vose and the appellant did not attend. The child and the CEO were represented. At the commencement of the hearing, it appears that the appellant was telephoned. The magistrate explained that the trial would be proceeding in her absence if she did not attend, and why. The call was disconnected during the explanation.
After a brief discussion with counsel, Magistrate Vose made a protection order which would continue until the child was 18 years of age. It is this order that the appellant seeks to appeal against.
On 21 January 2021, Principal Registrar Strk[3] ordered that the application for leave to appeal be heard with the appeal.
[3] As her Honour then was.
The grounds of appeal
The grounds of appeal are:
1.The Court's decision to conduct the trial and make final Orders in the absence of the Appellant gave rise to a breach of procedural fairness.
2.The Court erred in its decision to refuse to allow the Appellant's request for the trial to be vacated and relisted on a later date, because of her inability to attend the trial as a result of her medical condition.
3.The presiding judicial officer failed to provide adequate or sufficient reasons for the final decision made.
The first two grounds overlap.
The appellant was unrepresented in these proceedings. She attempted to file numerous documents. Many were not accepted for filing. Those that were accepted were largely irrelevant to her grounds of appeal. She did not file submissions in the proper form. However, I agreed to treat one document that she filed as her written submissions.[4] She also made oral submissions in the hearing of the appeal.
[4] This was a document on a Form 23 (Application in an appeal) dated 3 August 2021.
Both the CEO and the child participated in the appeal through counsel. Both submitted that the appeal should be dismissed.
The issues
The issues are:
1.In relation to ground 1, did the Court fail to afford procedural fairness to the appellant by conducting the trial and making the protection order in her absence?
2.In relation to ground 2:
a.was the appellant unable to attend the trial due to a medical condition?
b.if so, did the Court fail to afford procedural fairness to the appellant by refusing to adjourn the trial?
3.In relation to ground 3, did the Court fail to provide adequate or sufficient reasons for making the protection order?
4.If the answer to any of these questions is yes, should the appeal nevertheless be dismissed on the basis that there was no miscarriage of justice?
Before turning to the issues, I will set out the legal framework and a detailed summary of the factual history.
Legal principles
Objects of the Act
The objects of the CCS Act, as stated in s 6, are:
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(da)to support and reinforce the role and responsibility of parents in exercising appropriate control over the behaviour of their children; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e)to protect children from exploitation in employment.
Protection orders
Division 3 of part 4 of the CCS Act makes provision for several types of protection orders, including a 'protection order (time‑limited)' and a 'protection order (until 18)'. These give the CEO parental responsibility for the child for the period specified in the order.[5]
[5] Section 54(1) and s 57(1) of the CCS Act.
The Children's Court has the power to make a protection order if the Court finds that the child is in need of protection[6] and that making the order would be better for the child than making no order at all.[7]
[6] Section 45 of the CCS Act. As to when a child is 'in need of protection', see s 28(2) of the CCS Act.
[7] Section 46 of the CCS Act.
The Children's Court has the power to make a protection order (until 18) if the Court is satisfied that long-term arrangements should be made for the wellbeing of the child.[8]
[8] Section 58 of the CCS Act.
If a protection order is in place, a party to the initial proceedings may apply to the Children's Court for a revocation of the order. The Court may revoke the order if the Court is satisfied that it is in the best interests of the child to do so.[9]
[9] Section 67 of the CCS Act.
If a protection order is in place, the CEO may apply to the Children's Court for a revocation of the order and the making of another protection order in respect of the child. Subject to part 4 of the Act, if the Court is satisfied that it is in the best interests of the child, the Court may make such an order.[10]
Relevant considerations
Paramount consideration
[10] Section 68 of the CCS Act.
In performing a function or exercising a power under the CCS Act in relation to a child, the Children's Court must regard the best interests of the child as the paramount consideration.[11]
Mandatory considerations
[11] Section 7 of the CCS Act.
Section 8 of the CCS Act sets out a non-exhaustive[12] list of matters that must be taken into account in determining what is in a child's best interests. These relevantly include:
[12] Section 8(2).
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f)…
(g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i) the child's parents; or
(ii) a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv) any other person who is significant in the child's life;
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i)the child's age, maturity, sex, sexuality, background and language;
(j)…
(k)the child's physical, emotional, intellectual, spiritual and developmental needs;
(la)the child's educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child's circumstances.
Section 9 of the CCS Act sets out a list of principles that must be taken into account in the administration of the Act. These relevantly include:
(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
(c)the principle that every child should be cared for and protected from harm;
(d)…
(e)the principle that every child should have stable, secure and safe relationships and living arrangements;
(f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;
(g)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(ha)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long‑term stability for the child;
(h)the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;
(ia)the principle that decisions about a child with disability should be made giving special consideration to any difficulties or discrimination that may be encountered by the child because of the child's disability and should support the child's full and effective participation in society;
(i)…
(j)the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision‑making processes under this Act that are likely to have a significant impact on the child's life;
(k)…
(l)…
Tension between the competing considerations
In YPW vChief Executive Officer, Department for Child Protection,[13] Mitchell J[14] noted the tension that may arise between some of the considerations. His Honour said (citations omitted):[15]
… The provisions of s 8 recognise the harm which may be caused to a child by separating a child from his or her parents. In some cases the extent of the harm to which the child is exposed while in his or her parents' care may be such that it is clearly in the child's best interests to be taken into care, notwithstanding the potential harm that will result from the child being separated from his or her parents. … In other cases, where the degree of harm to which a child is exposed is less gross, difficult questions of judgment and balancing of risk arise in determining what is in the child's best interests. Where a child may be exposed to a risk of harm if left in his or her parents' care, and may be exposed to a different kind of harm if removed from the parents' care, then ascertaining what is in the child's best interests can involve an assessment of which approach is less deleterious.
The tension between the competing considerations which may inform the determination of what is in a child's best interests is also evident in s 9 of the CCS Act, which identifies principles to be observed in the administration of the Act. That section recognises that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing, and the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child. 'Wellbeing' is defined to include the care, development, health and safety of the child.
However, s 9 of the CCS Act also includes the principles that every child should be cared for and protected from harm, every child should live in an environment free from violence and every child should have stable, secure and safe relationships and living arrangements. Tension between these principles can arise in circumstances where these aspirations are not achieved while the child is in the care of his or her parents.
Section 9(f) of the CCS Act establishes a principle that intervention action by the [CEO] should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. … Where harm to the wellbeing of a child cannot be avoided other than by intervention action, a difficult judgment remains in balancing the harm to which the child is exposed in his or her parents' care against the harm which may result in separating the child from his or her parents.
The objects, considerations and principles which I have identified inform the content and exercise of the various statutory powers conferred by the Act. A controlling consideration is the statutory imperative to exercise the powers having regard to the best interests of the child as the paramount consideration. The provisions to which I have referred emphasise the importance of the parental role, and that intervention action should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. In cases where a child is exposed to harm in his or her parents' care, a difficult assessment may be required to determine where the best interests of the child lie.
Conduct of protection proceedings
[13] YPW vChief Executive Officer, Department for Child Protection [2015] WASC 123.
[14] As his Honour then was.
[15] YPW [14] - [18].
The Children's Court must ensure that proceedings conducted under the CCS Act, including protection proceedings, are dealt with justly. This includes ensuring that they are dealt with efficiently, economically and expeditiously, and that the Court's judicial and administrative resources are used as efficiently as possible.[16]
[16] Section 37(2)(b) of the CCWA Act and s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Protection proceedings are to be conducted with as little formality and legal technicality as the circumstances permit.[17] Further, protection proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child's family.[18]
[17] Section 145(1) of the CCS Act.
[18] Section 145(3) of the CCS Act.
In any proceedings affecting a child, the Children's Court may, if it considers it expedient and just to do so, proceed with the hearing and determination of any proceedings notwithstanding the absence of any parent or guardian.[19] In conducting protection proceedings, the Children's Court is obliged to afford procedural fairness to the parties.[20]
[19] Section 23(3) of the CCWA Act.
[20] AC v The Chief Executive Officer of The Department for Child Protection [2015] WASC 477 [27].
In protection proceedings, the Children's Court is not bound by the rules of evidence and may inform itself on any matter in any manner it considers appropriate.[21] The standard of proof is proof on the balance of probabilities.[22] However, because of the seriousness of a finding that a child is in need of protection, the evidence needs to be of a relatively high degree of cogency and persuasive power.[23]
Expert witnesses
[21] Section 146(2) of the CCS Act.
[22] Section 151 of the CCS Act.
[23] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [55].
In Albert & Plowman,[24] the Full Court of the Family Court said (most citations omitted):
[24] Albert & Plowman [2020] FamCAFC 23 [19] - [22]. See also G v W [2021] WASCA 180 [73] and [85].
Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
As was observed in this jurisdiction long ago (see Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819):
… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities …
…
While the [single expert's] views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross‐examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert] … (References omitted)
Appeals
By s 42 of the Children's Court of Western Australia Act1988 (WA) (CCWA Act), a protection order may be the subject of an appeal made in accordance with part 2 of the Criminal Appeals Act 2004 (WA) as if the order was a decision of a court of summary jurisdiction.[25]
[25] Protection orders are made under part 4 of the CCS Act.
To appeal 'in accordance with part 2 of the Criminal Appeals Act', leave to appeal is required. The Supreme Court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[26] That means that the ground is required to have a real, rational and logical prospect of succeeding.[27]
[26] Section 9(2) of the Criminal Appeals Act 2004 (WA).
[27] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The grounds of appeal on which appeals may be brought are that the court of summary jurisdiction made an error of law or fact (or both) or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[28]
[28] Section 8(1) of the Criminal Appeals Act.
In endeavouring to establish a material error of law or fact or a miscarriage of justice, an appellant is confined to the grounds of appeal, the record of the proceedings before the magistrate, and any additional evidence admitted by the Supreme Court under part 4 of the Criminal Appeals Act.[29]
[29] MJW v The Chief Executive Officer of The Department for Child Protection [2012] WASCA 221 [79] (Buss JA, as his Honour then was, with whom McLure P and Pullin JA agreed).
On appeal, the Supreme Court may, among other things, dismiss or allow the appeal, set aside or vary the decision of the court below, or substitute a decision that should have been made by the court below.[30]
[30] Section 14(1) of the Criminal Appeals Act.
Further, by s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[31]
[31] MJW [79] (Buss JA, as his Honour then was, with whom McLure P and Pullin JA agreed).
Finally, by s 14(3), if the court below failed to make any necessary finding of fact, the Supreme Court need not set aside or vary the decision if the facts or evidence in substance support the decision or justify the finding.
Where there is an allegation of a breach of procedural fairness
In Mijatovic v Legal Practitioners Complaints Committee,[32] Martin CJ said:
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 ‑ 504, (cited with approval in SZBEL).
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
[32] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [3] ‑ [4] (Martin CJ), cited with implicit approval in Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [110] (Murphy JA, with whom Pullin JA agreed and, on this ground, Buss JA, as his Honour then was, agreed).
Where a breach of procedural fairness has been shown, relief will nevertheless be denied if it is established that a properly conducted hearing could not possibly have produced a different result.[33]
Obligation to give reasons
[33] AC [35] (noting both the backward‑looking test and the forward-looking test), and the cases cited, in particular Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, 165 (Lindgren J), Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [129], and Stone v Braun [2015] WASCA 103 [79] (Beech J (as his Honour then was) with Buss JA (as his Honour then was) & Mazza JA agreeing).
In Chief Executive Officer, Department for Child Protection and Family Support v IGR,[34] the Court of Appeal said (citations omitted):
Principles relevant to an evaluation of the adequacy of reasons include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.
[34] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112].
The 'circumstances of the case' include the nature of the jurisdiction in which the reasons are given.[35] In SL v Chief Executive Officer of the Department for Child Protection and Family Support [No 2],[36] Pritchard J[37] said (citations omitted):
The Children's Court, like the Magistrates Court, is a busy court which must deal with the cases before it as expeditiously and efficiently as is possible, and with a degree of informality appropriate to that objective. In addition, given that children are the subject of its criminal jurisdiction, and the object of its civil jurisdiction, it is obviously desirable that the decisions of the Children's Court are expressed as simply and succinctly as is appropriate in the circumstances, so that the Court's decisions can be more readily understood by all those affected by those decisions. In that context, appeal courts should not scrutinise the reasons for decision given by magistrates in the Children's Court with an eye finely attuned to the identification of error, and errors should not be inferred from mere infelicities of language.
[35] WM v CEO for Department of Communities [2021] WASC 325 [222].
[36] SL v Chief Executive Officer of the Department for Child Protection and Family Support [No 2] [2016] WASC 97 [29].
[37] As her Honour then was.
If an appellant establishes that the reasons were inadequate, this does not inevitably mean that the appeal will be allowed. In G v O,[38] the Court of Appeal said (citations omitted):
If reasons are found to be inadequate, it does not follow that there is necessarily an appellable error. An appellate court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. Further, where an appellable error arises from inadequate reasons, it does not necessarily follow that a new trial is required. An appellate court is entitled to consider the matter and, if it can do so (for example, where only one conclusion is reasonably open on the available evidence), may decide the matter itself.
[38] G v O [2018] WASCA 211; (2018) 53 WAR 393 [64]. See, for a recent application of this principle in the context of an appeal under part 2 of the Criminal Appeals Act, Webb v Tang [2021] WASC 344 [212] - [214].
The factual history
The factual history was helpfully summarised by the CEO in his submissions (references to evidence omitted):[39]
[39] CEO's Submissions Annexure A.
1.On 4 December 2012, MRMS was born to mother HR and father MS.
2.On 23 July 2013, MRMS was taken into the care of the CEO pursuant to s 37 of the CCS Act.
3.On 26 July 2013, the CEO filed an application for a protection order (time limited) and sought an interim order pursuant to s 133(2)(b) of the CCS Act that MRMS remain in provisional protection and care. The application for a protection order (time limited) was brought on the basis that MRMS was in need of protection pursuant to s 28(2)(c)(i), (iii) and (v) of the CCS Act.
4.On 31 July 2013, the Children's Court declared pursuant to s 133(2)(g) of the CCS Act that MRMS is in provisional protection and care pursuant to s 37 of the CCS Act.
5.On 5 November 2013, MRMS was placed, and remains living with, general foster carers.
6.On 29 July 2014, the Children's Court made a protection order (time limited) for two years in relation to MRMS, pursuant to s 28(2)(c)(i), (iii) and (v) of the CCS Act. The appellant and second respondent neither consented to, nor opposed, the making of the protection order (time limited).
7.On 20 July 2016, the CEO filed an application pursuant to s 68 of the CCS Act to revoke the subsisting protection order (time limited) and make a protection order (until 18).
8.On 2 February 2017, the Children's Court made an order pursuant to s 139 of the CCS Act appointing Dr Phil Watts to provide a report to the court in accordance with the terms of reference.
9.On 23 March 2017, Dr Watts filed a 'Court Expert Report' dated 21 March 2017.
10.The CEO's application of 20 July 2016 was heard over three days, from 28 to 30 August 2017. MRMS and the CEO were represented. HR appeared unrepresented and MS appeared only as a witness for HR.
11.On 6 September 2017, the matter came before Magistrate Hogan for decision. The magistrate revoked the protection order (time limited) and made a protection order (time limited) for 12 months pursuant to s 68(5) of the CCS Act.
12.On 6 September 2017, the CEO filed a written proposal pursuant to s 143 of the CCS Act.
13.On 22 August 2018, the CEO filed [the Application] to revoke the protection order (time limited) and replace it with a protection order (until 18) pursuant to s 68 of the CCS Act and a written proposal pursuant to s 143 of the CCS Act.81
14.On 27 August 2018, the appellant filed a response to the [Application]. [The appellant sought that a time limited protection order be made[40]].
[40] Exhibit 1.3.
15.The [Application] was heard for mention on numerous occasions in 2018.
16.On 18 February 2019, the CEO filed a further written proposal pursuant to s 143 of the CCS Act.
17.On 20 February 2019, the appellant filed an affidavit in the Children's Court, alleging there was evidence of 'clear indicators of emotional issues such as anxiety that causes concern are not effectively dealt with at home/counsellor', though no evidence is annexed to that affidavit.
18.At a pre-hearing conference on 20 February 2019, the [Application] was listed for trial. It was listed for three days commencing on 29 July 2019.
19.A further pre-hearing conference was held on 10 June 2019. Also on 10 June 2019, the CEO filed a written proposal pursuant to s 143 of the CCS Act.
20.At a review hearing on 16 July 2019, the appellant sought to vacate the trial dates on the basis that she was awaiting the outcome of a review of her application for legal aid. The presiding magistrate made an order vacating the trial dates and listing the proceedings for mention.[41]
[41] It appears that the delay in the review process was not the fault of the appellant - see exhibit 4.25.
21.At a mention on 16 September 2019, the trial was listed for a second time to commence on 4 December 2019.
22.On 30 October 2019, Dr Watts filed an updated Court Expert Report.
23.On 29 November 2019, the parties attended a directions hearing for the purpose of hearing the appellant's application to vacate the December trial dates. The appellant informed the court that the basis for her application was a medical procedure scheduled for 4 December 2019, being the first day of the trial. The presiding magistrate made an order vacating the trial dates and listing the proceedings for mention on 5 February 2020.
24.On 4 February 2020, the appellant telephoned the court and stated that she was unable to attend the mention on 5 February due to shingles and requested the matter be listed for trial in late February/early March.
25.At the mention on 5 February 2020, the trial was listed for a third time to commence on 29 June 2020 and running to 1 July 2020.
26.On 23 June 2020, the appellant telephoned the court and requested that the June trial dates be vacated on the basis that she had shingles and would not be able to appear. Later that day, the appellant provided a medical certificate to the Children's Court registry by email, and sought to vacate the trial dates.
27.On 24 June 2020, Magistrate Vose made orders vacating the trial dates and listing the trial for a fourth time to commence on 2 July 2020. The registry emailed the CEO's lawyer and the child's representative advising of the orders vacating the June trial dates, and re-listing the trial for 2 to 4 July 2020.
28.On 1 July 2020, the appellant provided a medical certificate to the Children's Court registry by email and requested that the trial listed for 2 to 4 July be vacated and re-listed for 2 to 4 September 2020.
29.On 2 July 2020, the proceedings came before Magistrate Vose and the appellant did not attend. MRMS and the CEO were represented.
30.On 2 July 2020, Magistrate Vose revoked the protection order (time limited) made on 29 July 2014 and extended on 6 September 2017 and made a protection order (until 18) with respect to MRMS.
To that summary, I would add that the magistrate telephoned the appellant at the start of the hearing on 2 July 2020. I will set out in the next section what was said in that conversation.
In these reasons, I will refer to protection orders (time limited) as 'time limited protection orders', and will refer to the one made by Magistrate Hogan on 6 September 2017 as the 'Time Limited Protection Order'. I will refer to protection orders (until 18) as 'unlimited protection orders', and the one made by Magistrate Vose on 2 July 2020 as the 'Unlimited Protection Order'.
The hearing on 2 July 2020
The telephone call
The transcript of the hearing on 2 July 2020 suggests that the magistrate telephoned the appellant at the commencement of the hearing. The following exchange occurred:[42]
[42] Exhibit 4.27 pages 2 - 3.
[HR], MS:Hello.
HIS HONOUR: Is that Ms [HR]?
[HR], MS:Yes.
HIS HONOUR: Magistrate Vose here, Ms [HR]. We're in court and you're not here.
[HR], MS:I did send a medical certificate yesterday and I was instructed by the girl I was instructed by the girl at the desk last time I sent one just to do that - just to send the medical certificate through and just say that, you know, I - it has got to get extended.
HIS HONOUR: No - - -
[HR], MS:Unfortunately ‑ ‑ ‑
HIS HONOUR: No. You were told that the trial ‑ ‑ ‑
[HR], MS:- I didn't get my medical certificate
HIS HONOUR: ‑ ‑ ‑ that the trial would be starting - sorry. Sorry. Ms [HR] - you were told the trial would.be starting today. I gave you the length of the medical certificate that you sent in from Monday, and you were told that the trial would be starting today. It is starting today.
[HR], MS:Yes. Unfortunately, I didn't get to - I didn't get the medical certificate or get to send it to her yesterday.
HIS HONOUR: Well, unfortunately for you ‑
[HR], MS:I did send it yesterday. It wasn't today.
HIS HONOUR: - - - the trial will start today.
[HR], MS:Okay.
HIS HONOUR: And if you're not here we will deal with it in your absence. That's the reality. This is the situation: the child is represented. The child's lawyer is supporting the application. The child has been in care for most of its life with the same carers. This is, now, I think, the fourth time the matter has been listed for trial. It was originally listed for trial on 29 July last year and it did not proceed on that day because of medical issues that you had. It was put off until 4 December and it did not proceed because of medical issues. It was put off until 29 June and, again, it was put off for medical issues. It was put off until today.
Now, I have to determine this on the best interests of the child. It is not a question of whether or not you, at this stage, have got yourself up to the minimum standard of parenting. I have to actually look at the best interests of the child and what we've got is, now, the trial having been listed over a period of 12 months numerous times and you have failed to be able to be in a fit state to conduct any defence. The matter must proceed today in the best interests of the child. So if you're ill, I'm very sorry about that. But we can't put it off any longer. Okay. Are you there?
JSO:She disconnected. I ‑ ‑ ‑
The magistrate's reasons
After explaining why the trial would be proceeding despite the appellant's absence, there was then a short exchange between the magistrate and counsel for the child.[43] The magistrate then said:[44]
Well, having gone through the materials - the affidavits that have been provided, I'm satisfied that the matter should proceed today as mother is not here. The matter will proceed ex parte. So I will note - whereas the respondent father neither consents nor opposes. Which I think he indicated some time last year. And upon hearing ex parte in relation to the mother, the protection order time limited is revoked. Replaced with protection order until 18.
I make the point, also, that when one looks at the history, one can have little confidence that she would ever be in a position where she's ready to defend this. And so, there really seems to me to have been little alternative but to proceed in the way we have.
[43] Exhibit 4.27 pages 3 - 4.
[44] Exhibit 4.27 page 4.
The appellant's submissions and affidavits in the appeal
In her written submissions, the appellant submitted that the decision 'failed to reflect the case under procedural fairness I (initially) had medical certificate for NOT ATTENDING 2 July 2020'. She further submitted that she was not given the right or the opportunity to reply before the decision was made and 'possibly' she was not given a 'reasonable chance to consider my position before my reply'.[45] In her oral submissions, the appellant submitted that, had she been present, she could have made oral submissions to the magistrate and cross-examined all of the witnesses.[46]
[45] As noted earlier, I agreed to treat a document filed by the appellant on a Form 23 (Application in an appeal) dated 3 August 2021 as her written submissions.
[46] ts 38.
The appellant's written submissions asserted that her son was seriously injured while in care and that reports indicated that he was not adequately supervised or was not happy with his placement. The written submissions further said that
consideration should also be given to the fact that the carer does not hold [a] first aid certificate and has responsibility for several other children in her care where [the] Child could benefit from ONE on ONE care which I'm currently [in a] position to provide
In the affidavit material filed by the appellant,[47] the appellant included documents said to relate to injuries suffered by her son while in care or incidents that had occurred. She also included what appeared to be extracts from documents she had filed in the Children's Court responding to the affidavits filed by the CEO. These again raised her concerns as to injuries and incidents and also included numerous complaints against the Department of Communities (Department) and the staff who dealt with her son. She included letters from a case worker advising the appellant that her son needed a medical procedure to remove a foreign body from his nose. She also included an email from the child's lawyer, financial statements from the day care provider, and a certificate from a parenting program.
[47] See the affidavit filed 10 June 2021 attaching annexures marked 'A' to 'F', the affidavit filed 11 June 2021 attaching annexures marked 'G' and 'H', and an email of 11 June 2021 attaching annexure 'I'.
During the hearing of the appeal, in response to questions from me, the appellant made assertions as to what had occurred on 2 July 2020, the day the decision under appeal was made. Ultimately, however, the appellant accepted that the medical certificate that she had provided did not say that she was unfit to attend the trial, and that she had not provided evidence to the magistrate that she was unfit to attend the trial. The appellant said that she had not provided that evidence because she did not find out until a couple of days later that her shingles were contagious.[48] The appellant said that she had been on her way to the Court when the magistrate telephoned her. She said she arrived at the Court late and the decision had been made before she arrived. She was unable to explain why she was late to court.[49]
[48] ts 42 - 43.
[49] ts 44 - 45.
Subsequent materials
After the hearing of the appeal was concluded, and without leave, the appellant emailed a series of medical certificates from a Dr McKnight to my associate. Each document purported to certify that the appellant was 'unable to work [in a specified period] due to a medical condition'. No other information was given. The periods were 25 June 2020 to 3 July 2020, 1 July 2020 to 10 July 2020 and 22 July 2020 to 24 July 2020.
The appellant also emailed a copy of what appeared to be progress note for an attendance on 25 June 2020 for 'herpes zoster/left upper arm'. Herpes zoster is another name for shingles.
The appellant did not seek leave to file additional material. Had she done so, I would have refused leave. The hearing was complete when I reserved my decision. In any event, none of this material was before the learned magistrate. None of it certifies she was unfit to attend court. None of it changes my views.
Analysis of grounds
Although there is an obvious overlap in grounds 1 and 2, it is logical to deal first with ground 2.
Ground 2
Ground 2 alleges that the Children's Court erred in its decision to refuse to allow the appellant's request for the trial to be vacated and relisted on a later date, because of her inability to attend the trial as a result of her medical condition.
In my view, there is insufficient evidence to demonstrate that the appellant was unable to attend the trial and, if she was, that that was due to a medical condition.
There is evidence that, on 1 July 2020, the appellant emailed a medical certificate to the Children's Court Registry and requested that the trial listed for 2 to 4 July be vacated and re-listed for 2 to 4 September 2020 (July 2020 email).[50]
[50] Exhibit 4.33.
The 'Subject' line of the email stated 're trial extension [the child's surname] case listed for 2-3 July seeking 2-4 September 2020 instead as lawyer needs at least 6-8 weeks thanks'.
The medical certificate did not certify that the appellant was unfit to appear in Court (in person or by telephone). It certified only that she was receiving medical treatment and 'will be unfit to continue her usual occupation' during July 2020. The medical certificate said it had been completed on 30 June 2020, and was on the letterhead of an afterhours doctor, a Dr Czajko. It gave no other details whatsoever.
Prior to the appellant's July 2020 email, the appellant had sought and obtained the vacation of trial dates in July 2019, December 2019, and June/July 2020.
When the trial commenced, the Court telephoned the appellant. The appellant told the magistrate that she had sent in a medical certificate and had previously been instructed 'just to send the medical certificate through and just say that … it has got to get extended'. The magistrate told her that was not sufficient and that the trial would be proceeding that day. She said 'okay'. The magistrate advised her that, if she did not attend, the hearing would proceed in her absence. His Honour gave a detailed explanation as to why. By the end of that explanation, the telephone line had been disconnected.[51]
[51] Exhibit 4.27.
Given the sequence of events, the most likely explanation for the line being disconnected might be thought to be that the appellant had hung up. In addition, there is evidence which suggests that the appellant controlled the ability of others to communicate with her by telephone.[52] While this is common to most phone users and entirely understandable, it indicates that the appellant is capable of exercising control so as to ensure that access to her is entirely on her terms.
[52] See under the heading 'The evidence'.
The appellant denied (from the bar table) that she had hung up.[53] It is unnecessary to reach a view as to this. That is because the appellant accepted that she did not provide the magistrate with evidence that she was unable to attend the trial.[54] When that is added to the other circumstances (including the prior adjournments and the need to act in the child's best interests), the magistrate did not err in refusing to adjourn the trial for a fourth time.
[53] ts 38 - 39.
[54] ts 42.
In any event, I am not satisfied that the appellant was unable to attend the trial due to a medical condition. There was no evidence before the magistrate to that effect and there is none before me. At most, there is what purports to be a progress note filed without leave after I had reserved my decision suggesting that the appellant had a herpes zoster lesion on her upper arm. I am not satisfied that the magistrate erred in refusing to adjourn the trial.
I would dismiss ground 2.
Ground 1
Ground 1 alleges that the Children's Court's decision to conduct the trial and make final orders in the absence of the appellant gave rise to a breach of procedural fairness.
I am not satisfied of this for the following reasons.
The Children's Court is obliged to afford procedural fairness to the parties. However, it has the power to proceed with the hearing and determination of any proceedings notwithstanding the absence of any parent or guardian if it considers it expedient and just to do so.[55]
[55] Section 23(3) of the CCWA Act.
In determining whether it is expedient and just to do so, relevant considerations would include the objects and purposes of the CCS Act and, in particular, protection proceedings.
In exercising a power under the CCS Act, the paramount consideration is the best interests of the child.[56] Further, a relevant principle is the importance of continuity and stability in the child's living arrangements.[57]
[56] Section 7 of the CCS Act.
[57] Section 9(e) of the CCS Act.
The magistrate concluded that it was in the child's interests that the trial proceed. There is no reason to doubt the correctness of that conclusion. On the contrary, it is supported by the evidence, viewed in the context of the legislative framework. I later discuss the evidence in detail when dealing with the CEO's submission that, even if the magistrate did err, there was no substantial miscarriage of justice. It is sufficient to note here that the evidence demonstrated that the child was a high needs child, that the parents were incapable of meeting his needs, and that the mother's incapacity was caused by significant cognitive defects, not by lack of training or education.
In addition, the Court contacted the appellant at the start of the hearing by telephone. The appellant did not say that she was running late, did not say that she was on her way, and did not give any indication that she had intended to appear. Rather, the appellant told the magistrate that she had sent in a medical certificate, and, in effect, that this was what she had been told to do to get a hearing adjourned.[58] The magistrate then sought to explain to the appellant why the hearing would be proceeding. At the end of the explanation, the magistrate was told by the judicial service officer that the appellant had disconnected the call.
[58] Exhibit 4.27 page 2.
Further, the Children's Court is obliged to conclude protection proceedings as expeditiously as possible in order to minimise the effect of the proceeding on the child and the child's family.[59] The trial dates had previously been adjourned three times, at the appellant's request. There was inadequate evidence to justify a further adjournment.
[59] Section 145(3) of the CCS Act.
In addition, the Application was supported by the child's legal representative. Further, while the father did not consent to the orders sought by the CEO, he did not oppose them.
I would dismiss ground 1.
Ground 3
Ground 3 alleges that the magistrate failed to provide adequate or sufficient reasons for the final decision made.
The magistrate's reasons were set out earlier. The CEO submits that, in the circumstances, the magistrate's reasons were sufficient.[60] At most, the CEO concedes that 'it may be arguable that the magistrate's reasons do not adequately disclose the reasoning process to such an extent as to enable the appellant and the appellate court to consider and determine whether or not the judgment is erroneous'.[61]
[60] CEO's Submissions [34].
[61] CEO's Submissions [35].
In my view, it is more than merely arguable.
No matter how broadly the magistrate's words are interpreted, and no matter what inferences are drawn as to what they conveyed, the words do not disclose the intellectual process that led to the decision to make the Unlimited Protection Order to enable the appellant to know why the decision was made and to enable this Court to determine whether the decision involved appellable error. The magistrate gave virtually no reasons for his decision, beyond identifying that he had read the affidavits that had been filed.
This ground is made out.
The CEO next submits that, if I find the reasons were inadequate, the appeal should nevertheless be dismissed as there was no substantial miscarriage of justice. The CEO submits that the decision to make the Unlimited Protection Order was the only decision reasonably open on the evidence.
Only decision reasonably open?
Determining whether the decision to make the Unlimited Protection Order was the only decision reasonably open on the evidence requires an analysis of:
1.the nature of the orders being sought and the framework in which the Application was to be assessed; and
2.the evidence adduced at first instance.
The nature of the orders being sought
The Application sought orders that the then current Time Limited Protection Order be revoked and an unlimited protection order be made, under s 68 of the CCS Act. The Children's Court had the power to make those orders if it was satisfied that long-term arrangements should be made for the wellbeing of the child[62] and it was in the best interests of the child to make the orders sought.[63]
[62] Section 58 of the CCS Act.
[63] Section 68(5) of the CCS Act.
In considering whether to vary or revoke an order, it is relevant to have regard to the original order and the reasons why the order was made. It is also relevant to consider the events that have occurred since the original order was made, which could justify a change in the original order.[64] Nevertheless, the critical issue before the learned magistrate was whether it would be in the child's best interests to make the orders sought. Further, as the orders sought included an unlimited protection order, his Honour also had to determine if he was satisfied that long-term arrangements should be made for the wellbeing of the child.
The original order - September 2017
[64] MJW v The Chief Executive Officer of the Department for Child Protection [2012] WASC 66 [146] - [147], approved in MJW [59] - [60] (Buss JA, as his Honour then was, with whom McLure P and Pullin JA agreed).
The order sought to be revoked was the Time Limited Protection Order, made by Magistrate Hogan. In making this order, Magistrate Hogan refused to make the unlimited protection order that had been sought by the CEO. His Honour considered that further efforts should be made to attempt reunify the child with his parents. His Honour said:[65]
The evidence certainly maybe shows that it's in the best interests of the child that there be a revocation and replacement, bearing in mind that [the child] has been away from the mother and father for so long, the only way, if there's to be reunification, is in a staggered way. I certainly am of the view that there shouldn't be an order to 18, I think there's a view that reunification shouldn't be immediate as of no order being made.
[65] Exhibit 4.39 page 3.
When making the order, Magistrate Hogan also recommended that the '143 proposal' be followed. The '143 proposal' was a document dated 6 September 2017 that set out, pursuant to s 143 of the CCS Act, the steps that the appellant and the father would need to undertake in order to ultimately be reunited with their child.[66] I will refer to it as the '2017 Proposal'. The steps were set out in stages, such that, if one stage was successfully completed within the specified time period, the parents would progress to the next stage.
[66] Exhibit 4.40.
The 2017 Proposal provided that, if reunification with either parent was unsuccessful, the Department would look at long term placement options for the child to remain in the care of the Department until he turned 18.[67]
The subsequent events
[67] Exhibit 4.40 page 10.
As the evidence showed, after Magistrate Hogan made the Time Limited Protection Order, the parents did not meet all of the requirements of the 2017 Proposal and continued to display significant shortcomings in their ability to care appropriately for the child during contact visits. On 22 September 2018, the CEO filed the Application, in which the CEO again sought an unlimited protection order.
The evidence
The evidence before Magistrate Vose comprised:
1.four affidavits filed by Grace Diong, Child Protection Worker, dated 22 August 2018, 12 July 2019, 27 November 2019 and 11 June 2020;[68]
2.10 affidavits filed by nine different Family Resource Employees (FRE), nine of which were sworn in July 2019 and one in June 2020, regarding observations by the FRE of the supervised contact visits between the parents and the child;[69]
3.two reports of the Court expert Dr Phil Watts, a clinical and forensic psychologist. The first was dated 21 March 2017 and the second was dated 30 October 2019;[70] and
4.two affidavits filed by the appellant dated 27 August 2018 and 20 February 2019.[71]
Ms Diong
[68] Exhibits 1.2, 2.14, 3.15 and 3.16.
[69] Exhibits 1.5, 1.6, 1.7, 1.8, 1.9, 2.10, 2.11, 2.12, 2.13, and 3.17.
[70] Exhibits 4.18 and 4.21.
[71] Exhibits 1.3 and 1.4.
Ms Diong has been the case manager of this matter since 3 February 2017. The affidavits of Ms Diong set out some of the issues that had occurred in relation to the contact visits between the parents and the child, and the negative impacts the visits appeared to have on the child.[72] She also identified a number of requirements of the 2017 Proposal with which the parents had not complied.[73]
[72] See in particular exhibit 3.16.
[73] Exhibit 1.2 [24] and [25].
Further, Ms Diong set out what she and those involved with the family had done in an effort to assist the parents and maximise the prospects of a successful reunification.
These efforts included continuing to attempt to contact the appellant even when it was very difficult to do so. For example, there was a six-month period when the appellant's telephone number was not in use.[74] The appellant also appeared to be unwilling, at least at times, to speak to Ms Diong. On one occasion, the appellant telephoned the Department wanting to speak to a colleague of Ms Diong. When the call was transferred to Ms Diong (as she was the case manager) and she announced her name, the appellant ended the call.[75] On another occasion, the appellant telephoned a colleague of Ms Diong to complain about having been unable to reach Ms Diong that morning, but then declined an offer to have her call transferred to Ms Diong saying she did not want to talk to Ms Diong.[76] Ms Diong also set out occasions when the appellant had refused to provide her telephone number.[77]
[74] See in particular exhibit 1.2 [51]. See also exhibit 3.16 [17], [64] and [66].
[75] Exhibit 3.15 [31].
[76] Exhibit 2.14 [97].
[77] See, for example, exhibit 2.14 [158], [170] - [172] and [175].
Ms Diong noted that the parents failed to attend any of the seven meetings that were scheduled in the period from 11 December 2017 to 16 July 2018.[78]
[78] Exhibit 1.2 [52].
Ms Diong also set out the investigations made by the Department into allegations made by the appellant as to how the child was being cared for. The investigations appeared to be thorough, and it appears that appropriate steps were taken to monitor the child's care.[79] A number of the appellant's complaints were plainly lacking foundation.[80] In addition, the Department responded appropriately to complaints made by the appellant against the Department, even though the appellant's communications were sometimes difficult to understand.[81]
[79] See, for example, exhibit 1.2 [27] - [32] and annexure F. Although the affidavit and annexure F are not paginated, the relevant pages are pages 6 and 7 of annexure F.
[80] See, for example, exhibit 1.2 [33] - [35] and [41] - [43].
[81] See, for example, exhibit 2.14 [35] - [36], [48], [97], [148], [156], [175], [188], [196] and annexure H.
Ms Diong also took a number of steps to try to reduce the child's distress during the contact visits.[82]
[82] See, for example, exhibit 3.15 [12], [22] and [29] and exhibit 3.16 [16], [41], [54], [57], [61], [63], [70], [74], [88] and [102].
Despite those efforts, the parents were simply unable to care appropriately for the child during the contact visits. The appellant in particular seemed unable to understand his developmental level and appeared incapable of providing a safe environment. The child appeared to be greatly distressed at the prospects of the visits (with the appellant in particular) and his behaviour appeared to be adversely affected by the visits.[83] Ms Diong then organised for telephone contact to occur whenever the child refused to attend the contact visit or got too distressed.[84]
[83] See, for example, exhibit 2.14 [200] and exhibit 3.16 [33], [40], [88], [107] and [109] - [111].
[84] See exhibit 3.16 [117] - [124], [126], [135], [138] - [139] and [143].
Ms Diong also deposed to the child being diagnosed with Autism Spectrum Disorder on 7 November 2018, and attached the report of the multidisciplinary team which assessed him.[85]
[85] Exhibit 2.14 [77] and annexure T.
Ms Diong also set out the circumstances surrounding the appellant's request on 29 November 2019 to adjourn the trial set to commence on 4 December 2019. The appellant claimed she needed the trial to be adjourned as she was having an operation on the first day of the trial. From the evidence, this seems improbable.[86] However, as the appellant is unrepresented, I will not have regard to that possibility.
The FRE
[86] See exhibit 3.16 [19], [22], [26] and [35].
The affidavits filed by the FRE set out observations from the supervised contact visits between the parents and the child. The FRE consistently observed instances of the appellant not meeting the child's needs and appearing not to realise when he was engaging in unsafe behaviour. Examples of these were referred to by Dr Watts, as noted in the next section.
Dr Watts
Dr Watts was appointed by the Children's Court to give expert opinion evidence. He conducted a comprehensive intellectual and personality assessment of both parents and also assessed their parenting capacity. In Dr Watts' first report, he described the multi-faceted and labour intensive methodology he employed.[87]
[87] Exhibit 4.18 [6] - [18] and pages 17 - 21.
In observing how the parents interacted with the child, Dr Watts formed the impression that the parents did not appear to understand the child's developmental level.[88] Dr Watts subsequently reviewed the notes of supervised visits, and found that comments in those notes supported his impression.[89]
[88] Exhibit 4.18 [31].
[89] Exhibit 4.18 [32].
In his assessment of the appellant, Dr Watts said that the results on the standardised psychological testing suggested 'non-specific but quite marked cognitive impairment particularly in regards to verbal understanding'.[90] He said that the various notes of the Department's interactions with her showed she had an impaired ability to regulate her emotions.[91]
[90] Exhibit 4.18 [55].
[91] Exhibit 4.18 [58].
Dr Watts said that 'neither parent is capable of regulating their emotions and at times of stress become reactive and are likely to lack insight. This is going to affect the child's capacity to have a safe and secure attachment'.[92]
[92] Exhibit 4.18 [69].
In relation to risk, Dr Watts said:[93]
… when I read over the various documents there are at least two occasions at the swimming pool where significant concerns were raised about their inappropriateness of their parenting strategy in a danger situation, therefore in a worst case scenario [the child] could be put in a situation where he suffers harm due to lack of ability to perceive or manage risk.
The more general problems are around the day-to-day aspects such as the issues around his food, being able to maintain control and also aspects such as their ability to follow through on his various practical needs. The reports show that he has needed speech therapy, OT and also has some behavioural difficulties. This requires highly skilled parents who can provide stable parenting in a predictable environment. This would not be the case with [the father and the mother] and it is likely to escalate their problems.
[93] Exhibit 4.18 [76] - [77].
Dr Watts said that the parental deficits were not due to a lack of training or education. Rather, they lacked the capacity to acquire the necessary skills.[94]
[94] Exhibit 4.18 [78].
Dr Watts said:[95]
[The child] is in a foster home with a very competent carer. While she has a reasonably high number of children in that environment, [the child] shows a secure and healthy attachment, which is necessary for helping him develop emotional regulation. The information available would suggest that she is doing a good job in assisting [the child]'s development. I would consider removal from her care likely to be significantly detrimental bearing in mind that this is a boy who takes several sessions to begin to become verbal which is a sign that there is already attachment disturbance.
…
The Department has put in a recommendation for orders for [the child] to 18 years old. In my opinion, this assessment would indicate that orders to 18 is an appropriate recommendation.
[95] Exhibit 4.18 [79] - [80].
In October 2019, Dr Watts was asked to review those affidavits of Ms Diong and the FRE that had been sworn as at that date. In his updated report, Dr Watts noted the diagnosis of Autistic Spectrum Disorder and the documents that showed the child was behaviourally needy. He said that the new information:[96]
reiterates one of the concerns from my previous report that this is a high need boy with complex developmental problems. High need children need parents who are especially capable of meeting the educational, social, and special needs of the child.
[96] Exhibit 4.21 [7] - [10].
Dr Watts noted that, in his original report, he had raised concerns about the parents' capacity and had concerns about their capacity to manage the child's behaviour and the probability that the child would be placed in risk situations.[97] He said that:[98]
[i]n my opinion, the Family Resource employees' reports have common themes. The most concerning theme is prevalent in almost all of the Family Resource employees' reports, which include comments around [the mother] not intervening with [the child] when he engages in behavioural difficulties. These include observations by Julianne Carr in 2019 as well as the other Family Resource employees in 2018. It includes more dangerous situations, such as the child running from the library towards a busy road and the parents not intervening, to lesser incidents, such as [the child] engaging in inappropriate behaviour, such as spitting at his mother or banging his head, and these incidents not being intervened by the parents, especially noting the mother not intervening.
[97] Exhibit 4.21 [11].
[98] Exhibit 4.21 [12].
Dr Watts concluded:[99]
In conducting this review, it is evident that some 2½ years later, much the same observations are being noted about [the child]. [The child] still is a young person with complex developmental needs, which have now also been formally diagnosed as Autistic Spectrum Disorder. The information is still indicative of a high need boy with low skilled parenting capacity of the mother and, as a result, the child not receiving consequences promptly (which is especially necessary for a child like [the child] to learn) and, on occasion, the child being put in risk situations because of an ineffectual parenting style.
In my previous report, my assessment indicated that the mother had a wide variation of responses on cognitive testing, indicating that there are some strong aspects of brain function coupled with some significant cognitive deficits, which, as described previously, was suggestive of a "non-specific but quite marked cognitive impairment particularly with regards to verbal understanding". Therefore, the probability of change is negligible, and my reading of the Family Resource employees' reports would suggest that this is indeed the case.
In summary, the review of the material for the last two and half years does not change my original opinion and my concerns remain the same.
[99] Exhibit 4.21 [16] - [18].
Dr Watts' methodology was thorough. His report set out what he had taken into account and why he had reached the views that he expressed. He was an independent expert. His evidence was unchallenged. There was no evidence to the contrary. I accept his opinions.
The appellant
In her first affidavit, the appellant first set out her concerns as to what the child was being fed during contact visits with his father and when the child was taken by his carer to visit his father in hospital.[100]
[100] Affidavit sworn 27 August 2018 exhibit 1.3 (Appellant's First Affidavit) [4].
Second, the appellant also complained about having tried to obtain documents from the Department but said that they had refused to provide this in contempt of court.[101] From the affidavits of Ms Diong, this appears to be a reference to the Department's objections to summonses issued to it by the appellant seeking documents from third parties.[102]
[101] Appellant's First Affidavit [4].
[102] See exhibit 2.14 [67] and [152].
Third, the appellant said that her psychiatrist's bills still had not been paid. This appeared to be a reference to the bills of a psychologist Emrah Ates.[103] Annexure B to her affidavit is an invoice from Emrah Ates for a psychological assessment conducted on the appellant on 23 September 2014.
[103] Appellant's First Affidavit [5].
Fourth, the appellant referred to her son telling her that his carer had hit him really hard and it hurt. She described her intention to make a complaint about this and her efforts to obtain evidence of an injury and absence from school.[104] She also referred to her allegation that her son had a black eye from being hit by another child in the carer's home.[105] Annexure A to the appellant's affidavit is a photo that she said was of her son with a bruise.[106] The quality of the photo is poor, and no injury is visible. She expressed concerns about her son's safety and what was being done about it. It seems her concern went beyond his safety in the carer's home. It seems she was also concerned that her son was seeing the father's family and that this was not safe.[107]
[104] Appellant's First Affidavit [8] - [10].
[105] Appellant's First Affidavit [14].
[106] Appellant's First Affidavit [14].
[107] Appellant's First Affidavit [16], [18] and [21] - [22].
Finally, the appellant made some other statements which did not appear to be relevant to a decision as to whether an unlimited protection order should be made.[108]
[108] See, for example, the Appellant's First Affidavit [6], [7], [11], [12] and [20].
To the extent that the matters raised by the appellant went to the suitability of the child's carer to be his carer, this would be of some relevance to a decision as to whether an unlimited protection order should be made. If the child's current situation was inappropriate, the consideration as to the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements would no longer weigh in favour of an unlimited protection order. However, I do not accept that the child's carer was in any way unsuitable. The overwhelming weight of the evidence is to the contrary. This includes Dr Watts' assessment of the carer and the child's attachment to her,[109] the evidence as to the investigations, and Ms Diong's evidence of the significant lengths the carer went to in order to facilitate contact visits.[110]
[109] As set out in the previous section.
[110] See, for example, exhibit 3.15 [22] and exhibit 3.16 [15], [88] - [89], [99], [135] and [143] - [144].
The balance of the matters raised by the appellant in her first affidavit were not relevant to a decision as to whether an unlimited protection order should be made.
The only thing said in the appellant's second affidavit[111] was 'clear indicators of emotional issues such as anxiety that causes concern are not effectively dealt with at home/counsellor'. The affidavit has no attachments. This bald statement, unsupported by any material, is of no probative value.
Discussion
[111] Exhibit 1.4.
In making the Time Limited Protection Order, Magistrate Hogan plainly wished to give the parents a further opportunity to be reunited with their child. The evidence shows the lengths to which the Department went to maximise the prospects of success. Despite those efforts, the parents were simply unable to care appropriately for the child during the contact visits. The appellant in particular seemed unable to understand the child's developmental level and she appeared to be incapable of providing a safe environment. Further, face-to-face contact with his mother appeared to cause the child great distress and adversely affect his behaviour.
In the Application, the CEO sought an unlimited protection order. The appellant did not dispute that the child was in need of protection and did not dispute that making a protection order was better for the child than making no order at all. The appellant did not oppose a further protection order being made. However, the appellant sought that it be a time limited protection order.[112]
[112] See exhibit 1.3.
The critical question in the trial before Magistrate Vose was therefore whether it was in the child's best interests to make an unlimited protection order. His Honour also had to determine if he was satisfied that long-term arrangements should be made for the wellbeing of the child.
Having regard to the mandatory considerations in s 8 and s 9, I am satisfied that long-term arrangements should have been made for the wellbeing of the child and that it was in the child's best interests to make an unlimited protection order. The following matters are particularly relevant.
First, despite considerable effort and resources, the parents were unable to deal with the child appropriately. They were unable to provide him with stable parenting and were unable to perceive and manage risk. On occasions, the child was put at risk because of the ineffectual parenting.[113]
[113] See s 8(a).
Second, I accept Dr Watts' opinion that the parents' inability to protect the child and provide for his needs is due to a lack of capacity, not a lack of education or training. The appellant has significant cognitive deficits. The chance of change is negligible.[114]
[114] See s 8(b) and (c).
Third, this incapacity is particularly problematic in relation to a child with complex developmental problems. I accept Dr Watts' opinion that high need children need parents who are especially capable of meeting the educational, social, and special needs of the child.[115]
[115] See s 8(b), (c), (i), (k), (la) and (l).
Fourth, I accept Dr Watts' opinion that removing the child from his carer would likely be significantly detrimental. The child has been with his carer since he was a baby. The carer is said to be a very competent carer, and the evidence bears that out. The child shows a secure and healthy attachment to her.[116]
[116] See s 8(d), (g) and (m).
Fifth, should the circumstances change unexpectedly, such that the order is no longer in the child's best interests, an application could be made to revoke it.[117]
[117] See s 67 and 68.
I have no doubt that the appellant genuinely and deeply loves her son and that she would like to be able to care for him. I have also had regard to the principle that parents have the primary role in safeguarding and promoting a child's wellbeing, and that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents in the care of the child. However, I must also have regard to the principles that every child should be cared for and protected from harm and every child should have stable, secure and safe relationships and living arrangements. Having regard to all of the circumstances, a protection order was the only reasonable way to safeguard and promote the child's wellbeing.
I have considered whether a time limited protection order could reasonably have been made instead. I acknowledge that the appellant's incapacity to protect the child and provide for his needs would likely be less dangerous and damaging to the child as he gets older. Despite his developmental challenges and diagnosis, it is to be hoped that he will become better able to protect himself and provide for his own needs as he ages. Nevertheless, having regard to all of the circumstances, in particular the child's significant needs and the appellant's significant deficits, it is highly unlikely that the appellant would be able to properly care for the child before he turns 18. Postponing what appears to be the inevitable outcome would not be in the child's best interests, particularly having regard to the importance of stability. I am satisfied that long-term arrangements should be made for the wellbeing of the child. I am satisfied that the decision to make an unlimited protection order was the only decision that was reasonably open on the evidence.
Accordingly, I find that there was no substantial miscarriage of justice and dismiss the appeal.
Conclusion
For the reasons I have given, I would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
4 APRIL 2022
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