MCL v Chief Executive Officer for the Department of Child Protection
[2015] WASC 39
•6 FEBRUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCL -v- CHIEF EXECUTIVE OFFICER FOR THE DEPARTMENT OF CHILD PROTECTION [2015] WASC 39
CORAM: EM HEENAN J
HEARD: 12 NOVEMBER 2014
DELIVERED : 6 FEBRUARY 2015
FILE NO/S: SJA 1119 of 2013
BETWEEN: MCL
Appellant
AND
CHIEF EXECUTIVE OFFICER FOR THE DEPARTMENT OF CHILD PROTECTION
First RespondentLS
Second RespondentCS
Third RespondentSS
Fourth RespondentDS
Fifth Respondent
ON APPEAL FROM:
For File No : SJA 1119 of 2013
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE HOGAN
File No :CC 7332 of 2008, CC 7333 of 2008, CC 7334 of 2008
Catchwords:
Application for leave to appeal - Child protection orders - Application for leave to appeal from decision of Children's Court refusing application to revoke protection orders - Right of appeal - Nature of appeal - Procedure - Need to identify and join parties - Representation of children - Independent lawyer to report on whether there was any factor to prevent representation of all children by same lawyer - Mode of appearances by children - RSC O 70 r 2(1) - Notice to be given to guardians and fathers - Distinction between appeal from protection order and application to revoke an order - Best interests of children - No material changes in circumstances
Legislation:
Children and Community Services Act 2004 (WA)
Children's Court of Western Australia Act 1988 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Result:
Leave to appeal refused. Appeal dismissed.
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Ms C J Thatcher
Second Respondent : Ms R H Reader
Third Respondent : Ms R H Reader
Fourth Respondent : Ms R H Reader
Fifth Respondent : In person
Solicitors:
Appellant: In person
First Respondent : State Solicitor for Western Australia
Second Respondent : Reader Lawyers & Mediators
Third Respondent : Reader Lawyers & Mediators
Fourth Respondent : Reader Lawyers & Mediators
Fifth Respondent : No appearance
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
B (a child) v Hepple [2003] WASC 303; (2013) 233 A Crim R 436
BF v Department of Child Protection [2013] WASC 291
Chief Executive Officer of the Department for Child Protection v MJW [2011] WACC 7
Chief Executive Officer, Department for Child Protection v B (a child) [2008] WASC 174
Du Preez v Bullick [2000] WASCA 347
LJL (a child) v Mason [2013] WASC 465
MJW v Chief Executive Officer of the Department for Child Protection [2012] WASC 66
MJW v Chief Executive Officer of the Department for Child Protection [2012] WASCA 221
MJW v Chief Executive Officer of the Department for Child Protection [2013] WACC 11
PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228
S (a child) v Chief Executive Officer of the Department of Child Protection [2008] WASC 229
EM HEENAN J: (Because this case concerns the circumstances and welfare of children who have been made the subject of protection orders pursuant to the Children and Community Services Act 2004 (WA) (the CCS Act) no details or descriptions of the children or other persons which may lead to an identification of the children may be published - Children's Court of Western Australia Act 1988 (the CCWA Act) s 35 and CCS Act s 237. Accordingly, the published version of these reasons for decision has the names of the parties and the children anonymised by the use of capital letters, together with other deletions to prevent identification of any of the parties. An original copy of these reasons for decision in complete form is retained as the formal record of the court but access to this may not be obtained without an order of a Judge after notice to the first respondent for which there is liberty to apply to any person claiming an interest to permit such access.)
By notice of appeal filed 10 October 2013 MCL applied for leave to appeal from a decision of his Honour, Magistrate Hogan, in the Perth Children's Court given on 6 September 2013. That was a decision dismissing an application by the appellant for the revocation of protection orders previously made in relation to each of the second, third and fourth respondents, the children of the appellant. That application had been made pursuant to s 67(2) of the CCS Act in earlier proceedings. The present application for leave to appeal from the decision of 6 September 2013 is made as a result of the combined operation of the CCWA Act s 41 and pt 2 of the Criminal Appeals Act 2004 (WA) (the CCA).
Nature of appeal
Section 67(2) of the CCS Act enables the Children's Court to make orders confirming, revoking, or revoking and replacing protection orders if satisfied that it is in the best interests of the child.
This court has been assisted by extensive written submissions filed on behalf of the Chief Executive Officer for the Department of Child Protection (the CEO) at an early stage of the application. These have highlighted the need for additional parties to be joined to the leave application, for notice to be given to others and for representation to be arranged for the children. All that has taken some time and there have been several interlocutory hearings dealing with procedural matters, which will be described more fully in due course. There is also an extensive background of the protection proceedings in the Children's Court which is also recounted in the written submissions of the first respondent. That has been of added assistance because of the inexperience, the lack of legal training and limited appreciation of the legislative provisions by the appellant who has, throughout, appeared without the benefit of any legal representation.
It is necessary to set out the statutory provisions relating to the protection proceedings, the jurisdiction of the Children's Court, the avenues of appeal to this court and the previous background. Much of this is taken from the written submissions already acknowledged.
Section 20 of the CCWA Act confers on the Children's Court exclusive jurisdiction to hear and determine all applications made under the CCS Act. Where the Children's Court, when constituted so as not to consist of or include a Judge, makes any finding, order or other decision on the hearing of an application under pt 4 subdivision 5 of the CCS Act, the finding, order or decision may be the subject of an appeal made in accordance with pt 2 of the CAA as if it were a decision by a court of summary jurisdiction - CCWA Act s 42(1). Section 66 of the CCS Act (revocation of protection orders) is contained within pt 4 of the CCS Act.
The right of appeal given by s 42 of the CCWA Act is not limited to findings, orders or other decisions related to applications to determine finally protection proceedings: PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 [33], and generally see [26] - [41]; S (a child) v Chief Executive Officer of the Department of Child Protection [2008] WASC 229 [15] - [49]; and Chief Executive Officer, Department for Child Protection v B (a child) [2008] WASC 174 [3].
Leave to appeal is required in relation to each ground of appeal. In order for leave to be granted, a ground of appeal must have a rational and logical prospect of success: S (a child) v Chief Executive Officer of the Department of Child Protection [22] - [23].
An appeal under pt 2 of the CAA is in the nature of a rehearing: Criminal Procedure Rules 2005 (WA), r 64. The appeal court must decide an appeal on the evidence and material that were before the lower court (CAA s 39(1)), although the appeal court may admit other evidence: CAA s 40(1)(e).
Not all of the grounds of appeal set out in s 8 of the CAA can apply or be adapted to apply to appeals of this nature: S (a child) v Chief Executive Officer of the Department of Child Protection [19] - [21]. Nonetheless, an appellant should be required to establish that the magistrate made an error of law of fact or both law and fact, or acted without or in excess of the jurisdiction or that there has been a miscarriage of justice. Such an appeal is not a retrial of matters that were before the primary court. As a first step, an appellant must demonstrate that the primary court fell into error in the manner specified by a ground of appeal: Avsar v Binning [2009] WASCA 219 [37]. Mere repetition of argument which failed to persuade the primary court does not in general indicate error by that court: BF v Department of Child Protection [2013] WASC 291 [11].
The parties to appeal
In the notice of appeal originally filed by the appellant the only parties named were the appellant and the CEO as sole respondent.
Section 147 of the CCS Act provides:
147. Parties to protection proceedings
In protection proceedings each of the following people is a party to the proceedings -
(a)the child;
(b)each parent of the child;
(c)the CEO;
(d)if the proceedings relate to a protection order (special guardianship) -
(i)the person or persons to whom parental responsibility for the child is proposed to be given under the order; or
(ii)the person or persons given parental responsibility for the child under the order,
as the case may be;
(e)any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.
Section 148 of that Act provides that if in protection proceedings it appears to the court that a child ought to have separate legal representation, the court will order that the child be separately represented by a legal practitioner and provides details about whose instructions the practitioner is obliged to act upon if so appointed.
Consequently, after this application for leave to appeal had been instituted, it became necessary to take steps to have each of the three children joined as parties to the proceedings; for the father of one of the children also to be joined; and for notice to be given to the guardians of the children and for legal representation to be arranged. Details of the steps taken in that regard and the results of them are set out later.
Background - previous proceedings
The three children who are the subject of these proceedings are:
LS (born [a date in] 2002);
CS (born [a date in] 2005);
SS (born [a date in] 2006).
The identities of the father or fathers of LS and CS are not known. DS, the fifth respondent, is the father of SS.
On or about [a date in] 2008 officers of the Department of Child Protection and Family Services took custody of the three children and, on [a date in] December 2008, they were placed in provisional protection and care. By applications dated [a date in] December 2008 the CEO applied under s 44 of the CCS Act for protection orders (time‑limited) in respect of each of the children. Those applications were later amended to seek protection orders for each child until the age of 18. The grounds for the applications were alleged neglect or, alternatively, inability of the appellant to provide medical therapeutic or remedial treatment.
On [a date in] September 2010 Magistrate Hogan, in the Children's Court, made a protection order (time‑limited), for a period of six months, in respect of each of the children. In reaching that decision the learned magistrate found that each of the children had suffered harm as a result of neglect and made, among others, the following findings:
(a)The children were being dropped off dirty, disgusting, unkempt and hungry.
(b)Sex played a large part in the appellant's life and she worked as a prostitute by selling sex for money.
(c)The appellant had male borders stay at her house while the children slept on the floor. The children would call all the men 'Dad'. Men were also constantly coming to the house to have sex while the children were there.
(d)The appellant lived in a fantasy world, where she would pass herself off as a person with qualifications in law, crime scene investigation and child care.
On [a date in] December 2010 the appellant filed an application in the Children's Court in respect of each of the children under s 67(1) of the CCS Act claiming an order for the revocation of the existing protection orders (time‑limited).
On [a date in] January 2011 the CEO filed an application in respect of each of the children under s 68 of the CCS Act for the revocation of the existing protection orders (time‑limited) and for the making of a protection order (until age 18) or such further protection order as the court might deem fit for each child to extend the period during which the CEO should have the legal parental responsibility for the children.
Both the appellant's and the CEO's applications were heard together by his Honour, Magistrate Schwass. On 29 March 2011, the appellant's applications were dismissed and the CEO's applications were granted. The existing protection orders (time-limited) were revoked and protection orders (until age 18) were made in respect of each of the children. In reaching this decision his Honour, Magistrate Schwass, found that:
(a)LS has post-traumatic stress disorder from the time she was in the appellant's care;
(b)the appellant demonstrated a complete inability to protect the children from harm and was contemptuous of the department's concern for the safety of the children, in particular from her series of boyfriends/partners/fiancés;
(c)the appellant does not have capacity to provide for the children's needs;
(d)the children should remain where they are until the appellant demonstrates significant and meaningful changes;
(e)the appellant has continually put her needs and wishes above the children's needs and has abrogated her parental responsibility;
(f)LS has qualified her wish to live with her mother if her mother does not have any boyfriends;
(g)return of the children to the appellant's care would be disastrous and the children have been in their current placements since December 2008;
(h)appropriate contact has been maintained consistent with the best interests of the children;
(i)the children are of a vulnerable age and LS has been sexually abused. The appellant appears indifferent to what has happened to LS and is not protective of the children;
(j)the children's identity has been maintained while in the respondent's care;
(k)the children's needs are being well met and the appellant's evidence as to her intentions and ability to meet the needs of the children if they were to be returned to her is not accepted; and
(l)the children have been settled for over two years and disruption to their wellbeing comes from contact with the appellant.
See Chief Executive Officer of the Department for Child Protection v MJW [2011] WACC 7 [78].
In addition, his Honour, Magistrate Schwass, also made the following findings of fact:
(1)the appellant is inherently dishonest, which is significant in terms of her ability to engage successfully with the department and any therapist;
(2)the appellant did not give birth to 'T' in April 1996 as she alleges, which is of some concern as to her mental health;
(3)the appellant cannot manage her finances;
(4)the appellant has a dubious lifestyle;
(5)the children, particularly LS, are happier when they do not have contact with the appellant; and
(6)there is no evidence that the appellant can or will make any significant change - [2011] WACC 7 [81].
The appellant applied for leave to appeal from the decision of his Honour, Magistrate Schwass. That application was heard by Mazza J on 5 December 2011, and on 28 February 2012 leave to appeal was refused: MJW v Chief Executive Officer of the Department for Child Protection [2012] WASC 66. The appellant then applied for leave to appeal from the decision of Mazza J. On 31 October 2012 the Court of Appeal refused leave to appeal and dismissed the proposed appeal: MJW v Chief Executive Officer of the Department for Child Protection [2012] WASCA 221.
On [a date in] April 2013 the appellant filed an application in the Children's Court under s 67(1) of the CCS Act to revoke the protection orders in respect of each of the children. Those revocation applications were supported by the appellant's affidavit of [a date in] April 2013. A directions hearing in relation to those revocation applications took place before his Honour, Magistrate Hogan, on 10 April 2013, when the following interim orders were made:
(a)the applications in respect of the children SS, CS and LS be heard together; and
(b)the applications be adjourned to a hearing on 8 and 9 August 2013 for the purpose of determining this preliminary issue of whether the applicant has established:
(i)some change in circumstances;
(ii)some new factor arising;
(iii)some factor not disclosed at the time when the orders were made; or
(iv)some other reason why the circumstances as such as requires the court to consider again the best interests of the children.
An affidavit filed on behalf of the CEO by Ms Donna Carter sworn 24 July 2013 was filed in response to the revocation applications.
The three conjoint revocation applications were heard before Magistrate Hogan on 8 and 9 August 2013, during which a series of documentary exhibits was tendered and received into evidence. Oral evidence was given by the appellant, her husband and two others. The CEO did not lead any evidence. Neither of the two affidavits filed by the appellant or the respondent was tendered in evidence but they were referred to during the hearing and in the reasons for decision: MJW v Chief Executive Officer of the Department for Child Protection [2013] WACC 11 [28].
Magistrate Hogan took into account his previous decision, the decision of his Honour, Magistrate Schwass of 29 March 2011 and the decisions of this court on the application for leave to appeal heard by Mazza J, and the further application for leave to appeal heard by the Court of Appeal.
Magistrate Hogan reserved his decision and on 6 September 2013 dismissed the revocation applications, delivering detailed reasons for decision: MJW v Chief Executive Officer of the Department for Child Protection [2013] WACC 11. That is the decision which is the subject of this present application for leave to appeal.
In his reasons for decision of 6 September 2013, Magistrate Hogan made the following findings and observations:
(a)there was no evidence that any of the children was at risk of harm arising out of their current status and placements. The appellant put nothing of substance forward to demonstrate any capacity to protect the children from harm over and above what was put in the trial in March 2011 - [2013] WACC 11 [29];
(b)it was important for the purpose of continuity and stability that the children remain in their current long-term placements: [29];
(c)the appellant failed to demonstrate a material change of circumstances since March 2011 and it was in the best interests of the children that the present position remain: [30].
That led to the institution of the present application for leave to appeal by the notice filed 10 October 2013, which is the current originating process in this court.
Interlocutory and directions hearings and directions
An initial directions hearing took place before Corboy J on 17 February 2014 at which the appellant and the CEO appeared. In the course of that hearing Corboy J sought to have the appellant identify what findings, aspects or other factors appearing in the decision of the learned magistrate of the Children's Court were said to be wrong or, otherwise, what were the grounds upon which she relied for seeking leave to appeal. This exercise was made rather difficult by the absence of any of the materials, evidence or reasons for decision of the Children's Court as none of those had, at that stage, been transmitted to this court or tendered by the appellant. The somewhat lengthy process nevertheless succeeded in identifying, in a general way, those features of the decision of the magistrate in the Children's Court which the appellant sought to challenge. Corboy J then indicated that this court would take steps to have the record of the Children's Court transmitted to this court and ordered that the appellant and the CEO file written submissions which, in the appellant's case, would identify more specifically the grounds upon which she relied to seek leave to appeal.
In the course of that hearing the appellant also indicated that she desired to call witnesses or adduce further evidence on the application for leave to appeal but did not produce or identify specifically what the desired additional evidence was. His Honour thereupon explained to the appellant that if she desired to seek leave to adduce further evidence it would be necessary for her to make a formal application on notice in that respect and to produce or identify the evidence sought to be relied upon. His Honour concluded by ordering that a copy of the transcript of the hearing before him on 17 February 2014 should be provided to the parties and that the appellant's 'notice of appeal will be then read in the light of the explanation that [the appellant] gave this morning as to what [she] proposed to raise in the appeal'.
Corboy J made further orders and directions on the papers on 4 March 2014. These included a direction that the application for leave to appeal should be heard at the same time as the appeal. In addition, a timetable for the filing of written submissions and other procedural steps was set.
The application for leave to appeal was then listed for hearing before me on 9 April 2014, when the appellant appeared and the CEO by counsel also appeared. By this time the written submissions of the CEO dated 4 April 2014 had recently been filed and served. Among other things, these drew attention to the provisions of s 147 of the CCS Act which, as already set out, makes each of the children, their present guardians and the fathers of the children parties to the proceedings before the court. At that point, parties other than the appellant and the CEO had still not been joined nor had they been given formal notice of the proceedings. It was of the first importance that procedural steps should be taken to comply with and give effect to the requirements of s 147 of the CSS Act, especially in the circumstances where the appellant was seeking the revocation of the protection orders, which would, if granted, involve the removal of the children from their established carers and their return to her custody and supervision. Accordingly, on 9 April 2014, I ordered and directed that:
1.There be an independent lawyer appointed to represent the three children under the provisions of s 148 of the CCS Act, that the lawyer so appointed then report to the court whether or not he or she is able to represent the interests of all three children or whether there is any actual or potential conflict of interest which requires separate representation for the second and/or third child. That report is to come before the court at a directions hearing on a date to be set and the court will determine whether or not separate legal representation should then be ordered for the second and/or third child.
2.The respondent [the CEO] do prepare a notice, in a form to be approved by the court, reporting on the origin of the present applicant's application to the Children's Court for revocation orders and the refusal of that application by the magistrate and the institution of the present application for leave to appeal. That notice shall specify these directions and be given to each of the three children by despatch to their foster parent or parents and to DS. There will be an opportunity for the parties notified to indicate to the court whether or not they wish to participate in these proceedings, in DS's case, either by arrangements which he should make himself or, in the children's cases, by one or more of the legal representatives appointed.
3.That notice be served on the foster parents of the children and on DS and any response to that notice be required within 21 days from service, after which there will be a directions hearing at a date to be fixed.
4.There be personal service of the notice on DS.
5.There be postal service of the notice on the foster parents of the three children.
6.A copy of the notice be served on the appellant.
7.The persons served shall have an opportunity to respond to the notice at the directions hearing and the appellant be notified in advance of the time and place of that hearing.
8.The hearing of the application for leave to appeal be adjourned to a date to be fixed.
A notice to the children and their foster parents and to DS as directed by my order of 9 April 2014 was duly prepared by the solicitors for the CEO and in due course served. That notice specified as follows:
1.On [a date in] April 2013, the appellant, MCL, filed an application in the Children's Court of Western Australia (Children's Court) pursuant to s 67(1) of the Children and Community Services Act 2004 (WA) (CCS Act) to revoke the protection orders (until 18) that were made in respect of the children LS (date of birth [a date in] 2002), CS (date of birth [a date in] 2005) and SS (date of birth [a date in] 2006) (the revocation application).
2.On 8 and 9 August 2013, the revocation applications were heard before Magistrate Hogan of the Children's Court and on 6 September 2013 Magistrate Hogan dismissed the revocation applications.
3.On 10 October 2013, the appellant filed an appeal notice in the Supreme Court of Western Australia, seeking leave to appeal Magistrate Hogan's decision on 6 September 2013 to dismiss the Revocation Application.
4.On 9 April 2014, the parties appeared before the Hon Justice Heenan who determined that by virtue of s 147 of the CCS Act, the children, the foster carers and DS (the father of SS) were deemed to be parties to the proceedings and should be notified of the present proceedings. Attached is a copy of the transcript and orders made by the Hon Justice Heenan on 9 April 2014.
By way of notice, you are informed that these proceedings will be listed for a further directions hearing on a date to be fixed. If you wish to take part in these proceedings, you have 21 days from the date of service of this notice to file at the Court and serve on the appellant and the respondent a notice of the respondent's intention (form 22).
[The notice then continued with the addresses for service of the respondent and the appellant.]
After service of that notice had been effected, arrangements were made to identify a legal practitioner ready, willing and able to act for the three children and indications were received that DS desired, in some way, to be involved in the proceedings.
The adjourned directions hearing resumed before me on 12 June 2014, on which occasion further orders and directions were made, including the following:
1.That LS, an infant born on [a date in] 2002, be named as the second respondent in these proceedings to appear by her guardian, the CEO. Secondly, that CS, an infant born on [a date in] 2005, be appointed as the third respondent, by her guardian, the CEO, and thirdly, that SS, an infant born on [a date in] 2006, be named as the fourth respondent, by her guardian, the CEO. Those three additional respondents be named in the title to this matter by their initials rather than by their full names, although their names will appear in this order. The second respondent will be LS by her guardian, the third respondent will be CS by her guardian, and the fourth respondent will be SS by her guardian.
2.An independent lawyer is appointed to represent and appear for each of the second, third and fourth respondents under the provisions of s 148 of the Children and Community Services Act 2004, Ms R Reader, who has appeared and will continue to appear on behalf of those three children.
3.Within 14 days, the CEO file a consent to be named as guardian of each of the three additional respondents.
4.DS be added as fifth respondent to these proceedings and a copy of the order appointing the additional respondents and providing for the appointment of a lawyer for the three children may be served by post on the fifth respondent, DS.
The orders of 12 June 2014 then provided for service of various identified documents on the second, third and fourth respondents, including the written submissions of the appellant and the CEO which by then had been filed.
The order for directions of 12 June 2014 also provided that:
6.There be liberty for the first respondent to file an affidavit or affidavits by the case worker or workers for each of the second, third and fourth respondents deposing to:
(i)the current circumstances of the accommodation of the three children;
(ii)the adequacy or otherwise of the existing care and placement;
(iii)the practical arrangements concerning the children's education involving attendance at school, kindergarten or other similar activities; and
(iv)any likely consequences, advantages or disadvantages which might flow from a change in the current status quo. Any such affidavits to be filed by 31 July 2014.
There were other directions and orders made providing a timetable for the filing of any supplementary submissions or reply and providing for general liberty to apply. At this hearing it was confirmed that DS was then in custody as a prisoner undergoing sentence.
By application dated 23 June 2014 the CEO applied for a variation of the terms of the orders and directions made on 12 June 2014 insofar as those orders required the three children to be named respondents by their guardian and in lieu sought an order that each of the three children should be named separately but continue to be represented by the legal practitioner which the court had appointed pursuant to s 148 of the CCS Act. That application was supported by the appellant herself and by the legal practitioner appointed to act for each of the three children. It was submitted on behalf of the CEO, as first respondent, that quite apart from the further submissions which I will mention shortly, this was desirable because as the legal guardian of the children the CEO would be placed in a position of potential conflict of interest when the CEO was already acting and named in the proceedings as the first respondent, the party responsible for originally taking the children into care and placing them in their current placements. It was submitted that one of the reasons allowing for separate legal representation of the children was to ensure that their personal best interests were recognised and that this would be comprehensively achieved by the legal practitioner appointed by the court under s 148.
There were, however, additional submissions in support of the application. The requirement for an infant to appear by a next friend (the plaintiff) or guardian (as defendant or respondent) appears in O 70 r 2(1) of the Rules of the Supreme Court 1971 which, however, do not apply to 'criminal proceedings': RSC O 1 r 3, although the term 'criminal proceedings' is not further defined. This present application for leave to appeal, and any appeal if leave were granted, resembles in many respects other forms of civil proceedings but it is nevertheless the case that the procedure adopted by Parliament to deal with such applications is that contained in the CCA - as previously mentioned, made applicable by s 42(2) of the CCWA Act 1988. As a consequence it was submitted that the requirement contained in RSC O 70 r 2(1) does not apply. The previous practice suggests that children involved in appeals under the Criminal Appeals Act appear and are described as, in each case, 'a child' and do not appear in those cases either by a guardian or a next friend - LJL (a child) v Mason [2013] WASC 465; B (a child) v Hepple [2003] WASC 303; (2013) 233 A Crim R 436 and previous appeals from the Children's Court in relation to protection proceedings appear to have adopted a similar procedure: PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 and S (a child) v Chief Executive Officer of the Department for Child Protection [2008] WASC 229.
Furthermore, s 148 of the CCS Act providing for the appointment of a legal practitioner to represent children separately provides that the legal practitioner so appointed is either to act on the instructions of the child if he or she has sufficient maturity and understanding to give instructions and wishes to do so or to act in the best interests of the child, s 148(4), which, by tacit assumption, appears to dispense with any need for a guardian or next friend. It is also the case, although not mentioned in submissions that, generally speaking, as in the present case, protection proceedings such as these involve questions or decisions to be made about a child's custody, welfare, health and education rather than decisions about the control of property, a trust fund or right of access to damages awarded to a child, which are the more common categories of cases dealt with in applications to which O 70 r 2 applies.
In view of the position of all the parties who have either consented to this application or have raised no opposition to it, I do not consider that it is necessary to make a final authoritative decision about this point as I am satisfied that the interests of the three children are fully protected by the role and responsibility of the legal practitioner appointed by the court under s 148. I therefore made those orders and varied the directions of 12 June 2014 to the effect that each of the three children should appear and be named by their own name without the need for the CEO to be named individually as the guardian of each of them.
Parties in proceedings in Children's Court
It is not entirely clear what the formal position was in relation to the parties to the proceedings in the Children's Court which are presently the subject of the application for leave to appeal. The transcript of the proceedings before the learned magistrate is entitled in the names of each of the three children and proceeds on the basis that there were three applications for revocation of protection orders heard jointly. The transcript does not name the applicant as a party, nor the CEO of the Department of Child Protection as a respondent, but this must surely be a clerical omission because each is named respectively as appearing and being heard in the proceedings before the learned magistrate. The learned magistrate's formal reasons for decision, [2013] WACC 11, name the appellant as applicant and the CEO as the first respondent, without naming any of the children or DS as respondent. However, those reasons identify the three applications in relation to each of the three children and in [4] and [13] refer to the matter proceeding in relation to each of the three children individually on a joint basis.
In [3] the learned magistrate recorded that DS did not take part in the proceedings. Accordingly, despite some uncertainties about the formal position, I consider that I should proceed on the basis that each of the children, the appellant and the CEO were parties or were treated as parties in the revocation proceedings and that it was recognised that DS was entitled to be treated as a party but in the absence of any appearance or application by him did not participate.
Further, I am satisfied that the directions made for the joinder of the children and DS in the present proceedings and the appointment of a legal practitioner to represent each of the children all 'parties' to the proceedings as identified by s 147 of the CSS Act have been joined and have had an opportunity to be heard on this present application. No party suggests, let alone submits, that the proceedings before the learned magistrate were defective for want of parties or joinder or for any other procedural reason.
The appellant also made an application dated 18 March 2014 seeking orders permitting her to submit new evidence and for an interim order in relation to contact with the children. By that application she also applied for an order that should a new psychiatric report be needed from a named doctor, Dr D Veltman, this should be provided at the cost of the first respondent.
At the directions hearing on 9 April 2014 I declined to make any orders in relation to interim changes in custody or access arrangements for the children, having regard to the desirability of avoiding changes to the then status quo and also because the question of the joinder of the children and their legal representation was then being dealt with as previously explained.
As for the application by the appellant to submit new evidence, affidavits of MCL sworn respectively 18 March 2014 and 11 November 2014 were filed. There was objection to the content of these affidavits by counsel for the first respondent and it must be said that, presumably due to a lack of legal training and experience, the affidavits contain much hearsay and irrelevant material, including comment and argumentative assertions. Section 146 of the CCS Act provides that in protection proceedings the court is not bound by the rules of evidence but may inform itself in any manner it considers appropriate and that, without limiting that power, evidence of representation about a matter that is relevant to the protection proceedings is admissible despite the rule against hearsay. This application for leave to appeal is, of course, not an original hearing in protection proceedings but if there is occasion for further evidence to be taken concerning the protection proceedings, whether in the course of an application for leave to appeal or on an appeal if leave were granted, it must surely be the case that evidence to be so admitted is evidence relating to protection proceedings and that its reception should be treated in the same way as the conduct of an original hearing, that is, without being bound strictly by the rules of evidence. At the hearing I ruled that I would accept the affidavits of the applicant subject to relevance and admissibility, which I would decide in due course. It is for the court to determine what weight is to be attached to those materials - Du Preez v Bullick [2000] WASCA 347. It seems, after due reflection, that I should adopt a position that the rules of evidence do not apply and that I may give such weight to the contents of the affidavits as I consider that they merit. I have, therefore, proceeded on that basis.
Other material received and referred to on the hearing of the application for leave to appeal comprised the transcript of the evidence in the Children's Court before his Honour, Magistrate Hogan, his Honour's reasons for decision and two affidavits of Patricia Shirley Farr, a child protection worker, relating to the history and current circumstances of the three children. These were sworn respectively on 1 and 29 August 2014. Written submissions from the appellant, undated, were received on 11 November 2014, from the first respondent dated 4 April 2014 and from Ms R H Reader, the legal practitioner for the children dated 24 November 2014.
Although joined as a party and served as ordered, the fifth respondent, DS, did not appear or make any effort to be heard at the hearing on 12 November 2014.
Due to unforseen and unavoidable circumstances, the legal practitioner appointed to represent the three children was unable to attend at the hearing on 12 November 2014 and it was necessary to decide whether or not this hearing should proceed in her absence. Both the appellant and the first respondent submitted that it should so long as Ms Reader was given an opportunity to make any further submissions later if she wished. Having regard to the evidence then before the court in the form of the affidavits, I concluded that it would be unlikely to be prejudicial to the interests of the children if the hearing were to proceed, and it did.
At the end of the hearing that day I reserved my decision and directed that there be a further period of 14 days for Ms Reader to make any submissions on behalf of the children or to notify the court if she does not wish to make submissions. I directed that in the event that the court were to be notified by Ms Reader that she does not wish to make submissions or the 14‑day time limit expires without submissions, the court would proceed to give its decision on the materials and in the light of the oral submissions made at the hearing on 12 November 2014. However, I also directed that if Ms Reader did make written submissions, then a copy of those submissions should be served upon the appellant and the CEO and that each would have seven days to file any written submissions in response to Ms Reader's submissions or to request that there be a further oral hearing and to provide reasons why a further oral hearing should occur. I also ordered that, in that event, there should be a further three days for Ms Reader to make any response to submissions from MCL or the CEO. I further directed that the application for leave to appeal and any appeal would then be decided on the written submissions which had been received without an oral hearing or if the court considered an oral hearing to be necessary a date would be fixed for that hearing.
Since then Ms Reader has filed written submissions dated 24 November 2014 which have also been served upon the appellant and the first respondent. No further submissions have been filed in response by either the appellant or by the CEO, nor has any party requested any further oral hearing and the time for any such request expired on or about 3 December 2014. Having considered the matter further in the light of the submissions of Ms Reader, I do not consider that it is necessary to hold any further hearing of the application.
Apparent grounds for proposed appeal
For reasons already given, MCL has not clearly identified specific proposed grounds of appeal. Nevertheless, as a result of the combined operation of the attempt to distil from her submissions the essential grounds upon which she seeks to challenge the decision of the learned magistrate, as undertaken by Corboy J on 17 February 2014, and from analysis of the written submissions of the first respondent of 4 April 2014, it is possible to extract what I consider to be the substance of the matters which she is seeking to rely upon. I realise that it is for the appellant to identify her proposed grounds of complaint and that she has attempted to do so in the two affidavits which she has filed and that primary attention should be given to these rather than to attempt to summarise her contentions by others. Nevertheless, as the appellant's material is so diffuse and varied, the summaries which have been attempted are useful and, I am satisfied, adequate. On this basis, I identify the substance of the proposed grounds of appeal as:
(a)failure by the learned magistrate to give sufficient weight to changes in circumstances for the best interests of the children (grounds 1, 4 and 6);
(b)failure by the learned magistrate to take into account or to give sufficient weight to sexual abuse allegations;
(c)failure by the learned magistrate to give sufficient weight to character references;
(d)failure by the learned magistrate to take into account the failure by the CEO to lead any evidence.
The course of the revocation applications
The details of the revocation proceedings and earlier proceedings referred to by them are set out fully in the reasons for decision of his Honour, Magistrate Hogan, [2013] WACC 11.
His Honour correctly identified the function of the court in exercising its power under the CCS Act as being obliged, by s 7, to regard the best interests of the child as the paramount consideration. His Honour proceeded to record how s 8 then set out a list of matters which must be taken into account in determining the best interests of the child but that the list is not exhaustive. His Honour observed that where there had been a material change in circumstances that is a relevant factor where s 67 proceedings are based on substantially the same material as has been the subject of the previous decision, saying that rather than a material change in circumstances being a necessary pre-requisite to an order being revoked, it is a relevant factor pursuant to s 8(2) along with all the factors in s 8(1). With respect, I consider that his Honour was entirely correct in identifying that course of approach.
The grounds upon which the appellant had sought revocation orders in respect of each of the three children were essentially the same. As described by his Honour they were at [18] - [19]:
The Department for Child Protection not being able to provide the appropriate care and protection as well as support in which was and still is required for my children, also neglect on behalf of the Department for Child Protection and the children's carers. Please see attached affidavit.
A revocation of the until 18 order based on the grounds mentioned above and the amount of res judicata in the second trial.
Evidence was given by the appellant herself, her husband, whom she married in January 2012, and two of her friends, Mr and Mrs K. His Honour said at [20]:
Each of the three witnesses gave evidence to the same effect, namely that the mother is a good and capable parent figure to other young children who she is in contact with. That includes [her husband's] own children, and the grandchildren of Mr and Mrs K. I have no reason to doubt the veracity and accuracy of those witnesses, but their evidence does not amount to a material change in circumstances. Mr and Mrs K have only known the mother for six months, and she has been married to [her husband] for only 18 months. The mother's parenting history and capacity was the subject of the two earlier trials.
His Honour then referred to areas where the appellant contended that the department had failed the children since March of 2011, contending that there had been sexual abuse, neglect, emotional abuse, educational abuse and child endangerment.
However, there had been no evidence of any sexual abuse occurring since the orders of March 2011. Reference to sexual abuse referred to evidence at the first trial in September 2010 relating to incidents alleged to have occurred in 2008 and 2009. Nothing had occurred since the protection orders had been made.
With regard to neglect, the appellant's evidence was that her husband had told her that a neighbour of one of the children's foster carer had told him that on one occasion the foster carer grabbed the child by the school bag and that she fell over. The appellant's husband gave evidence to the same effect. There was doubt as to when this incident had occurred, with conflicting evidence as to whether it was before or after March of 2011. There was a trivial complaint made in relation to the clothing worn by one of the other children to school. His Honour concluded that none of that evidence was sufficient to amount to any change in circumstances.
With regard to emotional abuse, the appellant gave evidence that the department sent all three children to contact visits with her at a time when it knew she would not be available. That clearly did not amount of emotional abuse and, in any event, it occurred long before March of 2011. So far as concerned educational abuse, the appellant said that one of the children was going backwards at school and that another had been taken out of school with appointments with a psychologist. In view of the earlier history of disrupted schooling, his Honour concluded that none of this amounted to a material change of circumstances.
As to child endangerment, the appellant claimed that by permitting the fifth respondent to have contact with his daughter, the fourth respondent, the child had been put at risk because of his violent tendencies. There was no evidence to prove that allegation, nor any evidence additional to that which had been considered at the trial leading to the making of the protection orders.
His Honour held that there had been no material change in circumstances since 29 March 2011 and further found that there was no evidence to demonstrate that any of the children was at risk of harm arising out of his or her current status and placement. His Honour held that it was important for the purposes of continuity and stability that the children should remain in their current long-term placements. Contact between all three children and their mother had been suspended since 2011 but the evidence showed that this lack of contact was not having any detrimental effect on the children. For those reasons, his Honour confirmed the protection orders which had been made by the court on 29 March 2011.
The affidavit evidence
The first of the appellant's affidavits, which was sworn on 18 March 2014, is essentially a repetition of allegations and contentions raised by MCL at one or both of the earlier protection hearings. She paid little if any regard to the need to establish some material change in circumstances or to establish other reasons to revoke the protection orders, instead concentrating on setting out the arguments which she had put, and which had been rejected, at the earlier hearings. Much of the affidavit content was to do with complaints that the learned magistrate had failed to accept claims which she had made at the revocation hearing.
One obvious change in circumstances was that the appellant and her husband, SCL, had been married on [a date in] January 2012 and that their relationship status was stable and that they had secure accommodation. There were many complaints about the conduct of the Department of Child Protection stretching back many years, and the constant theme was that the department or its officers had failed to accept or act on statements or reports which the appellant had made or caused to be made. Despite its length and prolixity, there is nothing in the appellant's affidavit of 18 March 2014 to demonstrate any error in approach taken by the learned magistrate at the revocation hearing, nor any change of circumstances or other factor which would make a revocation of any of the protection orders appropriate.
The second affidavit, of 11 November 2014, of MCL is similar in approach and in its frequency of criticism of officers of the Department of Child Protection. It purports to address the content of the affidavit filed on behalf of the first respondent but essentially is a repetition of and an attempt to vindicate claims or assertions which were made at one or both of the original protection order hearings. It entirely fails to demonstrate any material change in circumstances or any reason which would justify a revocation of the protection orders made in March 2011.
The present circumstances of the placement arrangements of each of the three children are described in the affidavit of Patricia Shirley Farr of 1 August 2014, subject to some minor corrections made in the second affidavit of 29 August 2014.
In her first affidavit Ms Farr describes her role as the child protection worker responsible for the second, third and fourth respondents. From the department records she deposes that the children were initially placed together following the granting of interim protection orders on [a date in] December 2008, but were later placed in separate placements due to the high level of their individual needs and the extent of their behavioural issues, which included sexualised behaviours and physical and emotional outbursts when they were together. In January 2009 CS was moved to her current placement, where she has now been for over three years. LS and SS remained living together. However, there were ongoing difficulties in managing the behaviours of LS and SS while they were living together with assessed and approved carers so SS was subsequently moved to her current placement in 2011, where she has continued for the last three years. LS remained with her carers, where she has now been for over five years.
The current accommodation circumstances of each of the three children were described. It is undesirable that all the details of these should here be recounted but the conclusion of the officer was that the existing caring placements were adequate in each case and that each of the three children was able to meet his or her needs. Educational and similar activities were well managed. A detailed history is then set out of the reports from carers including discussions between the psychologist and LS, who had been engaged in therapy for quite some time. It was the conclusion of the protection worker that it was in the best interests of each of the children to continue living with her current foster carer in long-term placement.
From her review of departmental records Ms Farr deposed that the appellant had not had contact with the children since early 2011 and before then contact between the appellant and the children was reported as being problematic, inconsistent and having a negative impact on the children. Details of why this was so were provided. At par 77 Ms Farr deposes:
In my opinion, given the length of time that the children have been in their current placements and their ages, removing them from their primary attachment figures and returning them to their mother's care now or in the future would cause them significant trauma. I consider it is important that the status quo is maintained for LS, CS and SS and that no changes are made to their current living arrangements. All three children are in long term placements, are settled in their own community, and the care arrangements are meeting their individual needs. The department would be concerned if the work that has been done with the individual children to address their trauma and complex needs, and to stabilise their secure placements would be significantly compromised if they were to have unsupervised contact or be returned to their mother.
Detailed reports from the psychologists who had treated LS and an earlier psychological report of the appellant and her then companion, the fifth respondent, with a very detailed review of the history of dysfunction and lack of adequate care by the appellant of the children up to and including 2010 were assessed. There is also a report by the clinical psychologist of a review of her examination with the fourth respondent, SS, made on 28 October 2013. It is sufficient to say that Ms Farr's affidavit and the psychologist's report contain extensive reasons with the supporting details of why it would not be in the interests of any of the children for them to be removed from their current placements and placed in the custody of the appellant. All of the children, particularly LS, have continuing needs for protection, counselling and stable supervised living. There has been substantial progress made in the care and protection of the three children but the need for ongoing care by persons other than their mother is beyond question.
The written submission by the legal practitioner appointed to represent the three children, Ms R H Reader, supports the submissions of the first respondent. Ms Reader has spoken with both LS, on 10 June 2014, and CS, on 18 June 2014. Because of her placement in the country, SS was unable to come to Perth to meet with the solicitor but Ms Reader did speak at length with SS's carer on two occasions and has also spoken to the carers of LS and CS. The submission of Ms Reader is that LS is opposed to any change in the present circumstances or being returned to the appellant. SS's attitude in this regard is ambivalent but she is continuing to receive therapy in relation to childhood issues. The legal practitioner representing the three children considers that it would not be in the interests of any of them to have the current orders revoked or for them to return to the full‑time care of the appellant. Rather, her submission is that there would be concern for the wellbeing and best interests of each of the children if the stable positive placement in which each of the three girls is currently placed were to be disrupted.
Consideration of submissions
As previously remarked, the paramount consideration in an application under s 66 of the CSS Act is the best interests of the child. Whether an order should be varied or revoked will depend upon the individual facts of each case. If a litigant is merely dissatisfied with a decision given in child protection proceedings, the appropriate course is to appeal. As observed by Mazza JA in MJW v Chief Executive Officer of the Department for Child Protection [2012] WASC 66 [146], it is inappropriate to apply for a revocation or variation of a protection order without identifying some material change in the circumstances. If an application is made to revoke an order, it is relevant to have regard to the original order and the reasons why it was made. The weight which is given to those matters is for the court hearing the application to vary or revoke to decide. Ultimately, the court must decide what is in the best interests of the children: MJW [147] (Mazza J).
So far as concerns the essential features of the proposed grounds of appeal sought to be raised by the appellant, it can be said that there has been a signal failure to identify or to demonstrate how the learned magistrate fell into any error of law or fact. Most of the submissions made by the appellant together with the vast preponderance of the contents of her affidavits are repetitions of the arguments which were made and rejected in the original protection proceedings and at the revocation hearing. There is no basis at all to conclude that the learned magistrate failed to give sufficient weight to alleged changes in circumstances.
With regard to the proposed ground that the learned magistrate failed to take into account or give sufficient weight to sexual abuse allegations, it is the case that there was no further evidence of any alleged sexual abuse after 2011 and that those allegations had been fully considered at the earlier hearings. There was no evidence that any of the children remained at risk of sexual abuse in their foster placements.
As for the proposed ground that the learned magistrate failed to give sufficient weight to character references, there is no reason to accept this. There are three written references from persons who were not called to give evidence on oath nor made available for cross-examination. The references were not signed and two of the referees have only known the appellant for a short time. As for the witnesses who gave evidence regarding the appellant's character, these were from people who had only known her again for a short time. In view of the findings which have been made previously about the appellant's character and behaviour before her latest marriage, there is no reason to conclude that the magistrate erred in attributing little or no weight to those character references or his failure to conclude that they amounted to a material change in circumstances.
As for the proposed ground that the learned magistrate failed to take into account the respondent's failure to lead any evidence, it is the case that the first respondent did not lead evidence at the hearing to contradict the appellant's evidence. However, the appellant's evidence was on its own insufficient to amount to a material change of circumstances and his Honour was entitled and bound to take into account the findings which had been made in the earlier protection proceedings.
I am satisfied that there is no prospect of any kind that any of the proposed grounds of appeal sought to be relied upon by the appellant to challenge the orders of the learned magistrate of 6 September 2013 has any prospect of success whatever. This being the case, leave to appeal must be refused, with the consequence that the appeal is dismissed.
1
9
4