KAP v The Chief Executive Officer, Department for Child Protection and Family Support - [2017] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KAP -v- THE CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASC 26

CORAM: MCGRATH J

HEARD: 19 DECEMBER 2016

DELIVERED : 10 FEBRUARY 2017

FILE NO/S: SJA 1011 of 2016

BETWEEN: KAP
First Appellant
BF
Second Appellant
AND
THE CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent
RP
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T G SCHWASS
Citation  :THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPORT v BF
File No  :CC 164 of 2013

Catchwords:

Protection and care of children - Appeal against decision of the Children's Court - Whether child in need of protection - Whether error in making a protection order (until 18) instead of a protection order (time-limited) or protection order (supervision) - Leave to appeal refused - Appeal dismissed

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA), s 3, s 8, s 9, s 28, s 45, s 46, s 47, s 50, s 54, s 55, s 57, s 58, s 147, s 148
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant             :     In person
Second Appellant         :     In person
First Respondent          :     Mr B D Nelson
Second Respondent      :     Ms J Johnston

Solicitors:

First Appellant             :     In person
Second Appellant         :     In person
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     Caverly Johnston Lawyers

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

AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87
Asvar v Binning [2009] WASCA 219
BF v Department of Child Protection [2013] WASC 291
Chief Executive Officer of the Department for Child Protection v BF [2013] WACC 2
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
MCGRATH J:

Introduction

The second appellant, BF, is the mother of seven children. The first appellant, KAP, is the father of two of those children being DP and RP. In 2013, a magistrate ordered that five of BF's children be subject to a protection order (until 18).[1] An appeal against that order was dismissed.[2] A seventh child RP, born on 12 April 2013, was apprehended at birth and placed into the care of his paternal aunt by the Department for Child Protection and Family Support (the Department). The Chief Executive of the Department then made an application under s 45 of the Children and Community Services Act 2004 (WA) seeking an order that RP should also be subject to a protection order (until 18).[3]
[1] Chief Executive Officer of the Department for Child Protection v BF [2013] WACC 2.
[2] BF v Department of Child Protection [2013] WASC 291.
[3] Application dated 17 April 2013.
The magistrate, after an eight day hearing, determined that RP should be subject to a protection order (until 18).[4] This is an appeal against that decision. I appreciate that it is difficult and distressing for the parents to have their children subject to a protection order (until 18). This appeal concerns only one child, RP. Undoubtedly, my determination will be received with sadness by BF and KAP given that the consequence will be that their youngest child will also be subject to a protection order (until 18).
[4] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [85].
For the reasons that follow, I refuse to grant leave to appeal and consequently the appeal is taken to have been dismissed.[5] In essence, the appellants have not demonstrated that the magistrate made any error in his decision.
[5] Criminal Appeals Act 2004 (WA) s 9(3).

The application and statutory framework

The first respondent made an application under s 44 of the Children and Community Services Act that RP be declared in need of protection and sought a protection order that RP be committed to the care of the first respondent until 18 years of age.[6] I will outline the relevant statutory framework before considering the proceedings in the Children's Court and the reasons for decision of the magistrate.
[6] Children and Community Services Act 2004 (WA) s 57.
Section 44 of the Children and Community Services Act authorises the first respondent to make a protection application to the Children's Court. It is necessary that the application specify the type of protection order sought and the grounds pursuant to s 28(2) on which the application is made. Section 28(2) of the Children and Community Services Act provides a definition of when a child is 'in need of protection'. Relevant aspects of that definition are that a child is in need of protection if:
28(2)For the purposes of this Part a child is in need of protection if -
…
(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i)physical abuse;
…
(iii)emotional abuse;
[(iv)deleted]
(v)neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d)the child has suffered, or is likely to suffer, harm as a result of -
(i)the child’s parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii)the child’s parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
Neglect includes a failure by a child's parents to provide, arrange, or allow the provision of adequate care for the child.[7]
[7] Children and Community Services Act s 28(1).
Section 45 and s 46 of the Children and Community Services Act provide the manner in which the Children's Court is to deal with a protection application:
45.Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
(a)make the protection order sought in respect of the child; or
(b)make another protection order in respect of the child.
46.No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
The Children and Community Services Act provides four types of protection orders. The protection order (supervision) is an order providing for the supervision of the wellbeing of a child by the first respondent for a period not exceeding two years.[8] The protection order (supervision) does not affect the parental responsibility of any person for the child except to the extent (if any) necessary to give effect to the order. The protection order (time‑limited) is an order giving the parental responsibility for a child to the first respondent for a period not exceeding two years.[9] In contrast, the protection order (until 18) is an order giving the first respondent parental responsibility for the child until the child reaches 18.[10]
[8] Children and Community Services Act s 47 ‑ s 53.
[9] Children and Community Services Act 2004 s 47 ‑ s 53.
[10] Children and Community Services Act 2004 s 57 ‑ s 59.
Section 7 of the Children and Community Services Act provides that when performing a function or exercising a power under the Act in relation to a child, the Children's Court must regard the best interests of the child as the paramount consideration.
Section 8 provides the matters which must be taken into account in determining what is in the child's best interests. Those matters include:
8.Determining best interests of child
(1)In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account -
(a)the need to protect the child from harm;
(b)the capacity of the child’s parents to protect the child from harm;
…
(e)the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(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;
…
(k)the child's physical, emotional, intellectual, spiritual and developmental needs;
…
(m)the likely effect on the child of any change in the child's circumstances.

Procedural history in the Children's Court

The application was first heard before another magistrate. On 24 June 2014, that magistrate ordered that RP be subject to a protection order (until 18). An appeal against that magistrate's decision was allowed on the basis that the magistrate reversed the onus of proof and accordingly, the matter was remitted to be dealt with by another magistrate.[11]
[11] KP v Department for Child Protection and Family Support, Certificate of Conclusion of Criminal Appeal, SJA 1058 of 2014; The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [12].
That remitted hearing, the subject of this appeal, was heard over eight days. The second appellant, BF, was represented at the hearing, as was the child RP, and the first respondent. The first respondent called six witnesses who provided affidavits and gave oral evidence.[12] The first appellant, KAP, gave evidence.[13] The second appellant, BF, did not give evidence. The legal representative of RP called Mr Simon Burke, a psychologist, who provided two psychological assessments[14] and gave oral evidence.[15] Some 53 exhibits were received.[16]
[12] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [19].
[13] ts 575 ‑ 758.
[14] Exhibit AD, Report of Mr Simon Burke dated 11 November 2013; Exhibit AE, Report of Mr Simon Burke dated 21 December 2015.
[15] ts 452 ‑ 503.
[16] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2, Schedule 1 – Exhibit List.

The magistrate's decision

On the eighth hearing day, after receiving closing addresses, the magistrate made the protection order (until 18).[17] His Honour stated that whilst he would give his decision forthwith, reasons would be published at a later time.[18] The succinct comprehensive reasons were published very shortly after the hearing.[19]
[17] ts 509 ‑ 511.
[18] ts 510.
[19] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2.
The magistrate identified the two bases upon which the application was made being that RP was likely to suffer harm as a result of neglect and that the appellants are unlikely to protect RP from harm of that kind.[20] The likely neglect is a failure by the parents to provide adequate care for RP. The likely harm is a detrimental effect of a significant nature on RP's wellbeing. The alternative basis was that RP was likely to suffer harm as a result of the appellants being unable to provide, or arrange the provision of, adequate care for the child.[21] The magistrate stated that given that the first basis was satisfied there was no need to consider the second ground for the application.[22]
[20] Children and Community Services Act s 28(2)(c)(v).
[21] Children and Community Services Act s 28(2)(d)(i).
[22] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [10].
The magistrate correctly identified the respective position of the parties noting that the first appellant’s submission was that the first respondent's application should be opposed and that he should be the primary carer.[23] The second appellant also opposed the application submitting that the least restrictive order should be made.[24] RP's legal representative supported the first respondent's application.
[23] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [17].
[24] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [14].
The magistrate outlined the evidence with a succinct and accurate summary.[25] He did so taking cognisance of the position of the respective parties.
[25] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [24] ‑ [55].
The magistrate outlined without error and applied the legislative framework that provides for and guides the making of protection orders.[26]
[26] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [56] ‑ [84].
The magistrate considered that the evidence was overwhelming that BF has no demonstrated capacity and no potential capacity to protect RP from neglect.[27] Further, that the evidence also satisfied him that KAP did not have the necessary capacity to protect RP.[28]
[27] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [62].
[28] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [62].
The magistrate stated that he was satisfied on the balance of probabilities that RP came within the definition of a child in need of protection.[29] His Honour considered alternative orders and made assessments of the likely effectiveness of making an order other than a protection order (until 18).[30] The analysis and reasoning is without error.
[29] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [56], [76].
[30] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [76] ‑ [84].

Grounds of appeal

The right of appeal is granted by s 42 of the Children's Court of Western Australia Act1988 (WA) which provides that an appeal may be brought against any finding, order, or other decision on the hearing of an application under pt 4 or pt 5 of the Children and Community Services Act.[31]
[31] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [35] ‑ [40].
Section 41 of the Children's Court of Western Australia Act provides that the right to appeal is as an appeal under pt 2 of the Criminal Appeals Act, which means that leave to appeal is required.[32]
[32] Criminal Appeals Act 2004 s 9(1).
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[33]
[33] Criminal Appeals Act 2004 s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
An appeal hearing is not a retrial of the issues that were before the primary court. The appellants must demonstrate that the primary court fell into error in a manner specified in a ground of appeal.[34] The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[35] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[36]
[34] Asvar v Binning [2009] WASCA 219 [37].
[35] Criminal Appeals Act 2004 s 8(1).
[36] Criminal Appeals Act 2004 s 14(1).
At the appeal hearing the appellants represented themselves. I also made orders joining the child as the second respondent and leave was given for RP to be represented by counsel. The appellants have sought leave to appeal on a notice of appeal which comprises three and a half pages of narrative which is a composite notice of appeal and submissions.
It is not useful to set out the entire narrative in these reasons. During the hearing of the appeal the contentions made by the appellants were distilled into nine separate grounds of appeal. The grounds of appeal are as follows:
1.The magistrate erred in law and fact by failing to have regard to the best interests of RP as the paramount consideration.
2.The magistrate erred in law and fact by failing to properly consider evidence regarding the best interests of RP relevant to sections 8(1)(b), 8(1)(c) and 8(1)(g) of the Children and Community Services Act.
Particulars
(i)The magistrate failed to properly consider the proposal that KAP be made the primary carer of the child and the principal decision maker.
(ii)The magistrate relied upon Ms Kendle Smith, when that witness has no extensive experience and no qualifications that relate to dealing with disability within families.
(iii)Evidence was received that countered the evidence of Ms Gillian Drew regarding the documentation of the attendance of KAP at contact sessions.
(iv)There was no evidence that RP has no attachment to his father KAP and mother BF. Evidence supported the strong attachment and the protection order (until 18) will profoundly disrupt that relationship.
3.The magistrate erred in fact by finding that RP has 'extreme' needs beyond the capacity of the appellants.
Particulars
(i)Ms Kearney gave evidence that RP's progress was sufficient for the level of funding for RP's therapy to be reduced.
(ii)KAP has been excluded from therapy sessions and never been educated or trained by the Department regarding RP’s therapy needs.
4.The magistrate erred in law by failing to properly consider a protection order (supervision) or protection order (time‑limited).
5.The magistrate erred in law by failing to take account of expert evidence that supported a less restrictive protection order.
Particulars
(i)Expert Simon Burke acknowledged that parental involvement in RP's therapy sessions would benefit RP.
(ii)Expert witness Dr Ashanthi Munasinghe acknowledged that parental involvement in RP's therapy sessions would benefit RP.
6. The magistrate erred in law by failing to consider the risk of harm to RP from exclusion of the appellants from his therapy.
7.The magistrate erred in fact by finding that Dr Munasinghe's expert evidence was not challenged.
8.The magistrate erred in fact and law by finding that BF was a 'dominant personality' absent 'substantial' evidence.
9.The magistrate erred in fact and law by finding that BF was a 'positive menace' to RP, without evidence.
I consider that the above grounds fairly encompass the issues that the appellants wish to agitate. The appellants agreed that is so at the hearing of the appeal. I propose to deal with the grounds in turn.

Merits of the grounds of appeal

Ground One – the magistrate erred in law and fact by failing to have regard to the best interests of RP as the paramount consideration

Section 7 of the Children and Community Services Act provides that in performing a function or exercising a power under the act in relation to a child the court must regard the best interests of the child as the paramount consideration. Contrary to the erroneous assertion by the appellants, the magistrate did approach his task by applying the legislative directive. The magistrate expressly referred to s 7 of the Children and Community Services Act and stated expressly that RP's best interests are the paramount consideration.[37]
[37] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [14].
The magistrate again referred to s 7 of the Children and Community Services Act when considering the appropriate order.[38] The magistrate then made the express finding that the best interests of RP were served by a protection order until 18.[39] His Honour considered the best interests of RP, in light of the evidence, and after careful application of the matters that he was obliged to take into account under the Children and Community Services Act.[40] This ground is not made out.

Ground Two – the magistrate erred in law and fact by failing to properly consider evidence regarding the best interests of RP

[38] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [60].

[39] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [60].

[40] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [60] ‑ [84].

By this ground the appellants contend that the magistrate erred by failing to consider the evidence regarding the best interests of RP relevant to s 8(1)(b), s 8(1)(c) and s 8(1)(g) of the Children and Community Services Act. That complaint has been particularised by reference to specific aspects of the evidence. I will consider each of the appellants' contentions.
A principal complaint of the appellants is that the magistrate failed to properly consider the proposal that KAP be made the primary carer of RP and the principal decision maker. The appellants contend that there was no evidence that affirmed the likelihood that the appellant KAP would neglect RP.[41]
[41] Notice of Appeal, page 2.
There was substantial evidence that KAP did not have the capacity to protect RP from neglect. The magistrate identified that the appellants' position was that KAP could be the primary carer.[42] His Honour then assessed the evidence and correctly determined that the proposal that KAP be made the principal carer was not open.[43] That finding is unimpeachable. There was substantial evidence that supported that finding.
[42] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [16] ‑ [17].
[43] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [77] ‑ [84].
Evidence was received from Mr Simon Burke[44], a psychologist with 15 years' experience, who produced two reports pursuant to s 139 of the Children and Community Services Act. [45] The magistrate outlined the salient aspects of the evidence of Mr Burke finding that there was no expert evidence that contradicted his expert opinion.[46] That finding is correct. The magistrate stated that he relied heavily upon the report of Mr Burke. That is understandable. The gravamen of Mr Burke's report is the opinion that:
Given little has changed since the previous assessment (particularly with regards to an acknowledgement or the taking of some responsibility for why the children are not currently in their care), I consider that there is little option but to finalise the Protection Order (Until 18) with RP. As well as considering wholeheartedly that it is in RP's best interests to live with CJ and DJ, I consider that there are too many risks to the child being reunited with either KAP and/or BF. The reasons for this are noted in this report, the previous report and in my view throughout the affidavit filed by Ms Smith (1 December 2015).[47]
[44] ts 452 ‑ 487.
[45] Exhibit AD Report of Mr Simon Burke dated 11 November 2013; Exhibit AE Report of Mr Simon Burke dated 21 December 2015.
[46] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [52] ‑ [55].
[47] Exhibit AE, Report of Mr Simon Burke dated 21 December 2015 [57].
The magistrate received evidence from Ms Burns who stated that KAP has not shown any insight or acknowledgement of the neglect to RP whilst he was living at home with BF. Further, Ms Burns stated that KAP refutes the agency reports and was not able to positively impact the neglect suffered by the children.[48] Ms Burns stated that the Department believed that RP was at risk of significant harm and that KAP is unlikely to protect RP from harm.[49] Ms Burns' oral testimony affirmed her considered view.[50]
[48] Exhibit A, Affidavit of Ms Emma Burns sworn 15 April 2013 [9] ‑ [12].
[49] Exhibit A, Affidavit of Ms Emma Burns sworn 15 April 2013 [44].
[50] ts 329 ‑ 330, 334.
Evidence was received from Ms Kendle Smith. The appellants contend that the magistrate erred when he relied upon the evidence of Ms Smith for the reason that Ms Kendle does not have extensive experience and no qualifications that relate to dealing with disability within families. Ms Smith holds a Bachelor and postgraduate qualification in psychology,[51] and is a Senior Department Child Protection Worker who has five years' experience working with the Department.[52] Since 2014, Ms Smith has been the relevant case manager.[53] In respect to the contention that Ms Smith does not have relevant experience dealing with families with disabilities, Ms Smith has undertaken tertiary training in working with children and adults with disabilities and has undertaken both paid and voluntary work with people with disabilities.[54]
[51] Exhibit G, page 1; Exhibit H, page 1.
[52] ts 410.
[53] ts 410.
[54] ts 411.
Ms Smith was not subject to cross‑examination by experienced counsel regarding her qualifications. The magistrate accepted the evidence of Ms Smith finding that Ms Smith's evidence was not controverted.[55] That is understandable. Ms Smith has relevant experience and gave cogent reliable evidence that was unimpeachable.[56] That evidence was that RP would be at risk of harm if he was to be cared for by the appellants, and given the extensive evidence of harm relating to the older siblings, the appellants were unable to protect RP from that harm.[57]
[55] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [30] ‑ [32].
[56] ts 412 ‑ 414, 432 ‑ 433; Exhibit AF, Written Proposal for Child prepared by Ms Kendle Smith dated 7 January 2016.
[57] Exhibit AF, Written Proposal for Child prepared by Ms Kendle Smith dated 7 January 2016, page 3.
The magistrate received evidence from Ms Gillian Drew, a family resource employee, who has been employed by the Department for three and a half years.[58] The magistrate referred to the reports of contact between RP and the appellants which were produced as Annexures A and B to Ms Drew's affidavit and noted Ms Drew's evidence that the appellant BF was not child focused during contact and that she was not capable of improving.[59] The appellants contend that evidence was received that countered the documentary evidence that recorded the attendance by KAP at the contact sessions.[60] The magistrate expressly considered this question and observed that issue was taken regarding the amount of contact KAP had at contact sessions and noted that Ms Drew was adamant that the records were correct.[61] After reciting the scope of Ms Drew's evidence the magistrate stated that he accepted the evidence of Ms Drew as being honest and accurate.[62]
[58] ts 1 ‑ 39; Exhibit K, Affidavit of Ms Gillian Drew sworn 19 May 2014.
[59] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [33] ‑ [35].
[60] Notice of Appeal, page 1.
[61] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [33].
[62] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [35].
In any event, if there was additional contact between KAP and RP, that the documents did not record, then such an error would be immaterial.
The appellants contend that there was no evidence that supported a conclusion that RP has no attachment to KAP and BF. The magistrate did not make such a finding. The appellants also contend that there was evidence that supported that there was a strong attachment between the appellants and RP and the protection order (until 18) would disrupt that attachment. To the contrary, the evidence supported the continuation of RP's placement which has been consistent since birth and that it was in RP's best interests that he continue to live with CJ (RP's paternal aunt) and DJ (CJ's partner).[63]
[63] Evidence of Mr Burke; Exhibit AE [57] extracted at [54] of The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2.
The magistrate, after carefully considering the proposal that KAP be appointed the primary carer, found that the legal and practical barriers were insurmountable. His Honour's findings in that regard are without error.[64]

Ground 3 - the magistrate erred in fact by finding that RP has 'extreme' needs beyond the capacity of the appellants

[64] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [77] ‑ [85].

The magistrate specifically referred to s 8(1)(c) of the Children and Community Services Act and made the express finding that neither parent has the necessary capacity to provide for RP given RP's extreme needs.[65]
[65] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [62] ‑ [63].
The appellants' complaint is in respect of the express finding that RP's needs were extreme. The appellants contend that evidence was presented that RP has responded to therapy and that RP's needs could not be regarded as extreme. In reliance on this ground the appellants relied upon the evidence of Ms Kearney that RP's progress was sufficient for his funding for therapy to be reduced. Ms Kearney, a senior speech pathologist with 13 years' experience, gave evidence regarding her treatment of RP. The extent of RP's difficulties was outlined by Ms Kearney.[66]
[66] Exhibit P – Ability Centre Plan for RP; Exhibit Q – Speech Pathology Report; Exhibit R – Ms Kearney’s notes regarding KP; ts 519-531.
Contrary to the assertion of the appellants, the evidence of Ms Kearney was that RP had 'the highest package for a child his age'.[67]
[67] ts 532.
Evidence was received that RP was responding to therapy.[68] However, the fact that RP may be responding to therapy does not mean that RP's needs have ceased to be extreme. On an examination of the evidence there is no evidentiary basis for the appellants' contention. To the contrary, the evidence supports the magistrate's finding that the needs of RP were extreme. The evidence comprised, in part, that of CJ (paternal aunt and carer),[69] Dr Munasinghe (a developmental paediatrician),[70] Ms Smith (RP's case manager),[71] Ms Robins, [72] Ms Kearney, [73] and Mr Burke. [74]

Ground 4 and 5 – the magistrate erred in law by failing to properly consider a protection order (supervision) or protection order (time‑limited) and failing to consider expert evidence supporting a less restrictive order

[68] Exhibit AF, Written Proposal of Ms Kendle Smith, page 2.

[69] ts 357, 375 ‑ 379; Exhibit B Affidavit of CJ sworn 4 January 2014 at [19].

[70] ts 465 ‑ 468, 459 ‑ 509; Exhibit C Paediatric Report prepared by Dr Fitzgerald dated 22 April 2015; Annexure C (Paediatric Report prepared by Dr Fitzgerald dated 16 January 2014) to Exhibit G Affidavit sworn by Ms Kendle Smith on 3 June 2014.

[71] ts 404 ‑ 446; Exhibit AF, Written Proposal of Ms Kendle Smith, page 2; Exhibit G; Affidavit of Ms Kendle Smith sworn 3 June 2014; Exhibit H, Affidavit of Ms Kendle Smith sworn 30 November 2015 [259].

[72] Exhibit N, Affidavit of Ms Robins sworn 26 May 2014.

[73] ts 521 ‑ 522, 524, 526 ‑ 527, 532; Exhibit R, Ms Kearney's notes from working with RP.

[74] ts 453 ‑ 503; Exhibit AE, Report of Mr Burke dated 21 December 2015 [18] - [19].

I now turn to grounds 4 and 5 which may be considered together. Ground 4 contends that the magistrate failed to properly consider alternative protection orders other than a protection order (until 18). Ground 5 contends that the magistrate failed to consider expert evidence supporting a less restrictive order.
I am satisfied that the magistrate did not err in making a protection order (until 18) for the reason that the evidence and findings, at their highest, were capable of supporting a finding that a protection order (until 18) was required.
The court is empowered to make either the protection order sought in the application or another protection order.[75] The Children and Community Services Act does not expressly require the magistrate to consider, and reject, every alternative protection order prior to determining that a protection order (until 18) was in the best interests of RP. I have outlined above the different type of protection orders available under the Children and Community Services Act.[76]
[75] Children and Community Services Act s 45.
[76] See: page 6 above
The magistrate upon determining that RP was in need of protection was empowered with a discretion to make a protection order sought by the respondent in respect to RP or make another protection order.[77]
[77] Children and Community Services Act s 45; AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87 [37].
The magistrate considered expressly the alternative protection orders that he was empowered to impose under the Children and Community Services Act.[78] After acknowledging the alternative orders and, after specifically considering the appellants' primary submission that KAP be appointed RP's primary carer, the magistrate applied the standard of proof and made the protection order (until 18).
[78] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [77] ‑ [84].
Turning to ground 5, the first contention is that Mr Simon Burke and Dr Munasinghe acknowledged that parental involvement in RP's therapy sessions would benefit RP. The gravamen of this complaint appears to be that a less restrictive order would permit the appellants to be involved in RP's therapy sessions. When Dr Munasinghe was examined by the first appellant she agreed with the proposition that a parent who has a complete understanding of a child's physical and mental developmental needs may attend early intervention services and assist by being educated in providing optimal support.[79] That is self‑evident. The question, though, is whether the appellants have the relevant capacity to protect RP from neglect. The findings of His Honour were to the contrary.[80]
[79] ts 493.
[80] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [56] ‑ [74], [77] ‑ [84].
Mr Burke gave evidence that he had very little confidence in the appellants' ability to meaningfully engage in treatment.[81] Mr Burke's evidence regarding the capacity of the appellants was as follows[82]:
There is no acknowledgment of any fault on their part and they do not consider they need to make changes to their behaviour. Their personality structure, their stance of denial and their inability to comprehend the extent of the concerns, in my view leaves them both incapable of both providing for RP's diverse needs and also adequately protecting him.
[81] ts 468.
[82] Exhibit AE Report of Mr Simon Burke, 21 December 2015 [57].
Accordingly, it is untenable to suggest that Mr Burke considered that the appellants should have a greater involvement with RP and that the benefits that would flow supported a less restrictive order. His evidence was to the contrary.

Ground 6 – the magistrate erred in law by failing to consider the risk of harm to RP from exclusion of the appellants from his therapy

There is no evidentiary basis for this ground. The appellants appear to erroneously assume that the protection order will have the consequence that they will be excluded from RP's therapy by treatment officers, RP's carers or Departmental officers. There is no evidence to support this contention. Further, there is no evidence that the appellants have been excluded in the past from RP's therapy sessions. There is no statutory basis for any exclusion. There is no evidence that the Department or treatment officers intend to exclude the appellants.
Further, in the event that the appellants were excluded from attending RP's therapy there is no evidence to support the contention that the exclusion would have the consequence of harm to RP. In any event, I am not willing to set aside the protection order (until 18) to permit the attendance of the appellants at the therapy sessions. It is for the first respondent to consider whether the appellants are being given a reasonable opportunity to attend the therapy sessions.

Ground 7 – the magistrate erred in fact by finding that Dr Munasinghe's expert evidence was not challenged

The appellants contend that the magistrate erred by stating that the evidence of Dr Munasinghe was not challenged. That contention relies upon the assertion that in cross‑examination Dr Munasinghe stated that the behaviours of children with developmental delay could be interpreted by workers inexperienced in disability profiling as being the product of neglect.[83]
[83] ts 487; Notice of Appeal, page 2.
Dr Munasinghe is a developmental paediatrician who commenced practice as a paediatrician in 2005.[84] Five of the children, including RP, are now patients of Dr Munasinghe. The evidence‑in‑chief of Dr Munasinghe relied, in part, on previous assessments by Dr Fitzgerald.[85] The assessment of Dr Munasinghe was that RP was diagnosed with global developmental delay,[86] plagiocephaly, and torticollis.[87] Dr Fitzgerald concluded that RP presents with significant developmental delay and is making progress due to very intensive intervention.[88]
[84] ts 459.
[85] Exhibit C Paediatric Report of Dr Fitzgerald dated 22 April 2015; Annexure C to Exhibit G (Paediatric Report of Dr Fitzgerald dated 16 January 2014).
[86] ts 468.
[87] ts 465.
[88] Exhibit C, Paediatric Report prepared by Dr Fitzgerald dated 22 April 2015.
The appellants contend that it was not open for the magistrate to find that Dr Munasinghe's assessments 'were not effectively challenged in any way' (emphasis added).[89] In support of that contention the appellants rely upon the examination of Dr Munasinghe concerning whether the behaviours of children with developmental delay could be interpreted by a person inexperienced with disability profiles as being the product of neglect.[90]
[89] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [36].
[90] Notice of Appeal, page 2.
During cross‑examination by counsel for the second appellant, Dr Munasinghe acknowledged that where there are development problems with siblings in the same family with a first degree relative having a problem, then a possibility exists that there is a genetic basis for the child's problem.[91] Dr Munasinghe stated that the fact that the second appellant has an intellectual disability continues to suggest that there is a possibility of an unidentified genetic component.[92] That evidence is unremarkable. It does not undermine the magistrate's findings.
[91] ts 478.
[92] ts 478.
The finding of the magistrate that Dr Munasinghe's assessments were not effectively challenged was correct.[93] The cross‑examination by the second appellant and counsel for the first appellant did not in any way diminish assessments made by Dr Munasinghe concerning RP.

Ground 8 - the magistrate erred in fact and law by finding that BF was a 'dominant personality' absent 'substantial' evidence

[93] ts 471 ‑ 509.

The second appellant contends that the magistrate found that she was a dominant personality absent substantial evidence. The magistrate's exact finding must be properly understood and the context in which that finding was made. When considering whether RP could be placed with KAP as the primary carer the magistrate found that BF was the dominant personality and that 'she would prevail if there was a difference of opinion'.[94] The finding is a relative assessment of who is the dominant personality in the relationship between BF and KAP.
[94] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [81].
The appellants particularise this ground by referring to the fact that the second appellant did not give evidence. The imputation being that the magistrate was unable to make the finding concerning BF's personality absent BF giving evidence. It was open to the magistrate to make such a finding whether or not BF gave evidence. The question is the sufficiency of the evidence. There was an evidentiary basis for the finding.[95] In particular, the magistrate relied upon the evidence of Mr Burke in making that finding.[96] In doing so, his Honour did not err.

Ground 9 - the magistrate erred in fact and law by finding that BF was a 'positive menace' to RP, without evidence

[95] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [77] ‑ [84].

[96] Exhibit AD, Report of Mr Simon Burke dated 11 November 2013 [42], [45], [58], [64], [66], [74]; Exhibit AE, Report of Mr Simon Burke dated 21 December 2015 [6], [20], [23] ‑ [24], [47].

The magistrate described the first appellant as being a positive menace to RP.[97] The appellants state that this is an inflammatory and pejorative statement for which there is no evidence in support.[98] Further, the appellants contend that there was no evidence presented of any active negative conduct of the second appellant to support the term 'positive menace' which is a term that reflects active, harmful intent.
[97] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [82].
[98] Notice of Appeal, page 3.
I appreciate that the appellants may feel aggrieved by the term. Though, in fairness to the magistrate, the term must be placed in the context of the eight day hearing where substantial evidence was received. Further, the words must be read in light of the entire reasons for decision of his Honour and in particular, the paragraphs of the judgment where the words complained of were stated.
The magistrate acknowledged that the parents undoubtedly wish to care for RP but that 'the uncontroverted facts are that all attempts to improve the parenting capacity of BF have met with complete failure'.[99] The magistrate considered whether RP could be placed in the primary care of KAP. The unimpeachable finding of the magistrate was that even if the legal difficulties could be overcome, BF was the dominant parent.[100] The magistrate found that BF has 'churned through various agencies and their workers with her aggressive attitude and stark denial that there is anything wrong with her parenting'.[101] The magistrate stated that the threat and reality of having her children removed permanently has not caused BF to change her ways and expressed the view that BF has no capacity to change.[102] His Honour then made the finding that BF was the dominant personality. It was not inappropriate for the magistrate to make those findings. His Honour then found that 'the expert opinion is against the parents having the care of RP, whether KAP is the "primary carer" or not or even if KAP separates from BF and he is the sole carer of RP'.[103] That finding is unimpeachable. It was in that context that the magistrate referred to BF as a positive menace. The use of those words does not impeach the relevant findings of the magistrate.
[99] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [65].
[100] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [81].
[101] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [84].
[102] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [84].
[103] The Chief Executive Officer of the Department for Child Protection and Family Support v BF [2016] WACC 2 [84].

Conclusion

Accordingly, I have determined that leave to appeal should not be granted and that the appeal be dismissed.