Meredith v CEO, Department for Child Protection and Family Support - [2014] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MEREDITH -v- CEO, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2014] WASC 265

CORAM: McKECHNIE J

HEARD: 3 JULY 2014

DELIVERED : 3 JULY 2014

PUBLISHED : 24 JULY 2014

FILE NO/S: SJA 1049 of 2014

BETWEEN: WILLIAM LLEWELLYN MEREDITH
Appellant
AND
CEO, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent
CAE
Second Respondent
A CHILD (a child)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE A HORRIGAN
File No  :PC 373 of 2013, PC 374 of 2013

Catchwords:

Child protection - Ongoing proceedings - Whether magistrate erred in failing to hear application immediately - Whether adjourning for urgent hearing appropriate

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent          :     Mr D K Childs
Second Respondent      :     Ms R H Reader
Third Respondent        :     Mr M D Beckerling

Solicitors:

Appellant:     In person
First Respondent          :     Department for Child Protection and Family Support
Second Respondent      :     Reader Lawyers & Mediators
Third Respondent        :     Bannerman Solicitors

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

JT v Chief Executive Officer, Department for Child Protection and Family Support [2014] WASC 200
PR v CEO, Department for Child Protection [2008] WASC 228
PVS v Chief Executive Officer of the Department of Child Protection [2009] WASCA 234
McKECHNIE J:

Introduction

There can be few more stressful and emotional moments than when a child is removed from a parent and placed into care. It is in everyone's interest that the Children's Court quickly determines whether the child can return to a parent or must remain in provisional protection and care.
Complex and contentious cases take time no matter how eager everyone is for resolution. They have to be scheduled for hearing along with other complex and contentious cases.
It is in no one's interest for case management rulings to be challenged by an appeal. Such a procedure may cause delay and will cause diversion.
Without good reason, the grant of leave to appeal will seldom be in the interests of justice.

How the matter comes to court

On 7 August 2013 two children, CL and SA, were taken into provisional protection and care by the CEO, Department for Child Protection and Family Support (DCP). A protection application was made more than two days after the children were taken into provisional protection and care. Since that time there have been many appearances, some substantial. The magistrate has been case managing the matter. The mother, CAE, is a party to the proceedings and SA is separately represented. The appellant, a lawyer, is also a party to the proceedings and self‑represented.
Following the decision in JT v Chief Executive Officer, Department for Child Protection and Family Support [2014] WASC 200, SA was taken into provisional protection and care without warrant on 13 June 2014. On 16 June 2014 an application (within 2 working days), supported by an affidavit, was made to the Children's Court for a provisional protection and care order: Children and Community Services Act 2004 (WA) s 38(4).
On 16 June 2014 the magistrate held a directions hearing. At the conclusion of the hearing, programming orders were made that the application for interim custody and the substantive application should be heard together for a period of 20 days from 11 August 2014. Because of her involvement as case manager, the magistrate disqualified herself from that hearing.
On 20 June 2014 Mr Meredith lodged a notice of appeal against that decision and applied for an urgent hearing of the appeal. His application was supported by two affidavits. DCP filed responsive affidavits.
On 3 July 2014 I heard the application for leave to appeal and appeal. I refused leave to appeal on all grounds, including a ground amended at the hearing, and said that I would publish my reasons later. These are the reasons.

The proceedings so far

On 8 August 2013 officers from the DCP apprehended SA pursuant to Children and Community Services Act 2004 (WA) s 37. A protection application was not made for 11 days. The application is contested by the mother and the appellant.
The proceedings so far have generated 16 applications supported or opposed by 36 affidavits.
On 18 September 2013 the magistrate appointed a clinical psychologist, Dr Simon Kennedy, to provide a report: Children and Community Services Act s 139. Dr Kennedy's comprehensive psychological evaluation was completed on 28 October 2013.
The potential problem caused by failure to comply with the time limit in Children and Community Services Act s 38(4) did not become apparent to anybody until the decision in JT.
When it did, DCP exercised its powers afresh and took SA again into provisional protection and care on 13 June 2014. An application was filed by DCP and came on for hearing before the magistrate on 16 June 2014. The magistrate made no final determinations at the hearing of this application. The DCP application was opposed by the appellant. The magistrate, and other parties, decided that as determination of the interim application would traverse much of the same ground as the substantive application, in the interests of an expeditious resolution, it would be better to have the whole matter dealt with once and for all. Ms Reader who represents SA told the magistrate:
Your Honour, what I can say is given the complexities of this matter, if anybody is contemplating having an interim hearing prior to the trial, I don't know if that's going to be practical, because certainly, as a child representative, I would be wanting to call witnesses for that. I wouldn't want it done on the papers; I think it's too complex. And I would be wanting Mr Kennedy over.
I wold like the children's counsellor to be able to give evidence as well and to have affidavit material. So that itself creates a complication, because it makes it a very - we're going to end up with a trial before a trial, if you like (ts 38).
Mr Currie for DCP said:
[I] think that the test really for me is if you had an interim hearing and it resulted in the children going home, what would the department do? It would be pointless for us to continue if the court had already decided the issue of where the children should live. And for that matter I think therefore it's a trial for substantive issues; they're one and the same matter. So I'm very happy that the matter has been listed for an urgent trial. I think this needs to be sorted out sooner rather than later (ts 39).
The appellant opposed the course proposed and wanted the application for interim provisional protection and care determined then and there. The magistrate declined and that refusal leads to this appeal.

Grounds of appeal

There are four grounds of appeal:
1.A miscarriage of justice occurred because of procedural unfairness. The unfairness being:
(a)the learned magistrate refused to allow the appellant to be heard in relation to placement of the child.
2.the learned magistrate made an error of law in finding that she was not required to hear or decide the appellant's application regarding placement of the child.
3.The learned magistrate's error in finding that she was not required to hear nor decide the applicant's application has resulted in a miscarriage of justice because the appellant has been denied the opportunity to be heard regarding placement of the child at the first listing date.
Ground 4 was amended at the hearing to read:
A miscarriage of justice occurred because on the material before the learned magistrate she ought to have declared that the children were deemed returned to the mother.

Is there a right of appeal from the matters arising at the direction hearing?

The Children's Court of Western Australia Act 1988 (WA) s 42 provides:
(1)Subject to this Act, where the 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 Part 4 or 5 of the Children and Community Services Act 2004 the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction (my emphasis added).
In PR v CEO, Department for Child Protection [2008] WASC 228 Jenkins J held:
In pt 5, the only final order which the court is empowered to make is an order to dispose of frivolous and vexatious protection proceedings. Consequently, if Parliament's intention had been to simply to grant a right to appeal against such a final order, there was no need to refer generally to pt 5 in the CC Act s 42(1). I infer that parliament did not intend the right of appeal given by the CC Act s 42(1) to be limited to findings, orders or other decisions related to applications to finally determine protection proceedings.
In order to give the CC Act s 42(1) meaning, it must include the right to appeal findings, orders or decisions made in respect to applications for interlocutory orders in protection proceedings, such as orders for the joinder of parties [33] ‑ [34].
She also concluded that a refusal to make an order or not make a finding amounts to 'any other decision'.
In an unreported decision of PVS v Chief Executive Officer of the Department of Child Protection I said:
So that in my view, while not necessary to finally decide the limits of the section, the expression 'finding order of a decision' must contemplate either a final form of finding order or other decision or at the least, in accordance with Jenkins J's, an interim order. On any view, in my opinion, the decision of the magistrate on the question as to whether he should disqualify himself does not fall within that phrase, and therefore I lack jurisdiction to deal with the issue. It is simply not a matter, at this stage, appealable. It may be that the magistrate is right or wrong and it may be that at the end of the trial it may or may not afford grounds for miscarriage of justice or error of law, but it is not a decision which I hold to be appealable.
I am fortified by that view by the limited nature of the term 'discretion' under the Criminal Appeals Act, mindful that this is to be dealt with as if it was a matter of a decision under that Act and I think that the words in section 42 must be qualified in some way and do not include what I will refer to as rulings made in the course of trial and I regard a ruling whether or not to continue hearing the matter as a ruling, not a finding order or other matter under the section (ts 33).
The issue in PVS was a challenge to a ruling by a magistrate not to disqualify himself for bias. On appeal, PVS v Chief Executive Officer of the Department of Child Protection [2009] WASCA 234, the court assumed, without deciding, that the appellant was entitled to make application for leave to appeal.
The matter was not fully argued before me (or indeed argued much at all). It is unnecessary to resolve it. However, I would not like to give unqualified assent to the proposition that interlocutory orders are able to be the subject of appeal.
It may well be the case that the magistrate has made no finding, order or other decision in the exercise of her powers. Rather she has simply adjourned a hearing so that a finding, order, or other decision can be made. If that is so, no right of appeal arises.
The transcript of 16 June 2014 makes clear that the magistrate was giving programming directions with the main object of having all issues resolved between the parties as soon as possible. As soon as possible was a hearing for 20 days commencing on 11 August 2014, a hearing which required many other hearings to be moved in order for it to be accommodated.
Effectively all the magistrate did was adjourn matters for argument before the trial magistrate and neither rule nor not rule on the appellant's principal application.
Courts at all levels are often faced with matters of urgency, perhaps none more so than the Children's Court where welfare and protection is paramount. The appellant's submissions depend for their force on an assumption that they are correct. When a matter is opposed and will have to be resolved by the taking of evidence, as well as determining legal submissions on the construction of the Children and Community Services Act, the Children's Court must set aside time for the hearing. It may be that the appellant's submissions will ultimately prevail but that cannot be asserted with certainty until a hearing.
Necessarily then a court must schedule a hearing taking into account the need to be fair to all parties, other matters in a busy court, and of course the welfare of the children. A reading of the transcript suggests the magistrate was acutely aware of all these things in making programming orders and declining to deal immediately with the appellant's application.
The first matter she dealt with was the application to remove Ms Reader as the child's separate representative. She declined to remove Ms Reader. No complaint is made about that decision.
The magistrate then dealt with the provisional protection and care application filed on 16 June 2014. She noted the appellant's bundle of documents which were handed to her, though not filed, which she then put to one side to decide how to manage the matter. She referred to the tsunami that had overtaken the court since the decision in JT.
Her Honour said that she had had some discussions with listings and then:
[I] anticipated, as at last week, that it was a high possibility your client might be wanting to make an application, contingent on the decision of JT, and it struck me that perhaps it might be in everybody's interests that rather than having an interim hearing where there might be rather a lot of evidence led, it might be better to have on substantive hearing sooner rather than later (ts 21).
She noted this raised a question from a practical perspective.
The magistrate viewed the matter as being a very urgent issue which should not be left to sit until October.
It is clear that the magistrate was programming for decision both a substantive application and the application that the Department had acted improperly pursuant to JT. Her Honour stressed constantly the need for expedition:
HER HONOUR: I'm really, really looking at not applying anything else other than the words of his Honour in JT and, if we've got an interim issue which needs to be looked at then we need to move heaven and earth to get that looked at. My view is that - and I've spoken to the listing coordinator about it - is to assess how soon we could look at either having a full‑blown interim hearing. And if we're going to have an interim hearing, I'm not quite sure why we would be having a substantive hearing - - -
CURRIE, MR: I think they're one and the same.
HER HONOUR: - - - given - I just can't see that it - do you want to sit down because - - -
CURRIE, MR: Yes. Sure.
HER HONOUR: - - - it's probably easier if we do it this way. I don't want to have these parties put through the horror of an interim hearing followed by the horror of a trial. I can't see that's going to benefit anybody. However, I'm very mindful that Mr Meredith is saying, 'I need urgent. I want to have my hearing today.' and I can't accommodate that. But I think we really need to look at whether we can look at getting something faster than the October dates because, quite frankly, we need to have an interim hearing and if it's going to be an interim hearing, given the nature of this case, I imagine that it would better - as I've said - to have a substantive one.
CURRIE, MR: I agree.
HER HONOUR: And that would be better all round for everybody. It would be better for Legal Aid, for mum, from that perspective, because I don't want to find out Mr Bannerman is going to be knocked back on the interim hearing but is allowed to do the substantive. That then puts mum at a disadvantage which is essentially the reason we're here. She's supported by Mr Meredith who also wants the interim hearing. I would have thought that we should all be looking at having a substantive hearing as soon as possible.
CURRIE, MR: I do agree with you, your Honour. But I'm serious when I say that ten days just won't be sufficient (ts 25 - 26).
The magistrate noted the appellant's application:
And so that's why I'm saying, yes, I'm very conscious that Mr Meredith wants his urgent application heard today. I'm not doing it but we do need to look at how quickly we can manage this matter, and it needs to be managed. So - and just whilst we're on that topic, what I propose to do is have it listed before a different magistrate.
I'm not going to be doing the interim hearing because I think I know far too much about this matter now, and so it's going to be listed before a different magistrate so someone can bring fresh eyes to it (ts 26).
After further discussion about the need for expedition and dates and availability the magistrate said:
At some point we have to say this is so urgent, we have to get on with it … So we will just have to vacate trials. We don't have a spare magistrate either (ts 30).
Counsel for DCP sought a s 133(2)(b) order but the magistrate pointed out it was opposed and needed to be listed for trial.
Counsel for the mother took a practical view:
In a practical sense, as I understand it, the time scales and being able to deal with an interim placement, with the volume of material that the court would need to determine, would not advance the hearing forward from 11 August to any measurable degree. If I am wrong in that, then my advice is predicated on that proposition to my client: that the court would have a difficulty in providing us with a substantive hearing much in advance of that, if at all.
…
HER HONOUR: So in terms of a practical position, the difficulty is expressed to [CAE] that I don't know that in an interim placement hearing would advance, in time scales, a determination on this issue, and it may then have an effect of needing to delay the substantive hearing, in the event an interim hearing is heard that coincides in time with when the court had allocated us time for the substantive hearing.
HER HONOUR: Well, we shouldn't be traversing the same issues, really. The issue, though is slightly different, as I see it now, because whatever issue the department had done inaccurately, or without being in a timely way to comply with the legislation, has now largely been overcome, as far as I can see it. And I don't know whether - I'm just speaking out load here - because from the way I look at it, on Friday something happened. The department decided to act, and it took action to take the children into provisional protection and care without a warrant, pursuant to section 37.
…
HER HONOUR: And I have to say that whilst it's not a fabulous outcome to be looking at 11 August for that placement application to be heard, that would be the best I could possibly imagine occurring. Because it's no longer the situation that JT envisaged. The department has changed its footing, because they've lodged that fresh application within time (ts 33 ‑ 35).
The appellant took a different view:
MEREDITH, MR: Your Honour, my view is that the section 37 power expires in two days after it's exercised, unless an application is brought. So that would be my concern; that basically that if there's not an order made today, that the children are sort of, by default, to be in the mother's care.
HER HONOUR: No. That's - - -
MEREDITH, MR: That's my interpretation.
HER HONOUR: It's not my interpretation of it. There's an application made. They've done the right thing. They've lodged their application within time on this occasion.
MEREDITH, MR: I think that your Honour is not going to make an order under section 133 on the department's application.
HER HONOUR: I don't see that I need to. Section 37 has - they've already been taken into provisional protection and care.
MEREDITH, MR: I think that usually, wouldn't the court make that - - -
HER HONOUR: I'm not talking about usually.
MEREDITH, MR: Okay.
HER HONOUR: I'm talking about now
MEREDITH, MR: In the past the court has made the interim order whenever the application has been brought forward.
HER HONOUR: Yes.
MEREDITH, MR: So that's just my - I'm just talking procedurally.
HER HONOUR: They may do. I'm sure that's what Mr Currie would like me to do, just so that there's the seal of approval.
CURRIE, MR: I'm not pressing - - -
HER HONOUR: but I don't see that's necessary, quite frankly.
CURRIE, MR: No. I don't think it is.
HER HONOUR: If I change something by placing the child, for example, with Mum today, then the child would cease to be in provisional protection and care, but then they would be saying I hadn't given them procedural fairness by having a trial, or having an interim hearing on that issue. So, you know, I think we're going round in circles really, but I will note your point and your position (ts 36 - 38).

There was further discussion of other matters including the forthcoming visit of SA's grandfather. These do not seem to be in issue on the appeal.

The magistrate disqualifies herself from the hearing

Because of her role as case manager, the magistrate recused herself from conducting the trial. The decision whether or not to stand aside from a hearing on the grounds of apprehended bias is one for the judicial officer concerned. It is a decision which may be made after application by a party or on the judicial officer's own motion. The magistrate had previously made rulings that might touch upon the matters in contention:
I've already disqualified myself some time ago in relation to a trial. Had there been an interim hearing I would have likewise disqualified myself in relation to that because, quite frankly, I've been prepared to manage this matter. I had hoped it might be resolved. I said that time and again (ts 51).
There is no challenge to the magistrate's decision to disqualify herself from hearing and deciding the interim and substantive applications.
This is a complete answer to the appeal (although there are others). The magistrate simply was in no position to make the rulings sought by the appellant on 16 June 2014. The appellant's application would have had to be adjourned to another magistrate for hearing. Effectively this is what the magistrate did choosing a date when all matters in contention could be resolved.

Ground 1

1.A miscarriage of justice occurred because of procedural unfairness. The unfairness being:
(a)The learned magistrate refused to allow the appellant to be heard in relation to placement of the child.

There is no arguable case that a miscarriage of justice occurred because of procedural unfairness for the reasons I have just outlined.
While the magistrate did not allow the appellant to develop his submissions orally, she did note (ts 18) that the appellant's bundle of documents had been handed to her:
The appellant then intervened:
MEREDITH, MR: Your Honour, my view of JT is that procedurally ---
HER HONOUR: I don't want to hear your view of JT. I want to know whether you support the mother's application. Yes, no. Yes, I would have thought.
MEREDITH, MR: Yes.
HER HONOUR: Yes.
MEREDITH, MR: I would like to make submissions today in support of an application for [SA] to come home - - -
HER HONOUR; I'm not hearing submissions today. We need to have it listed for an appropriate discussion, and this is not the time nor the place. I'm with you on the fact that it's urgent. All right?
MEREDITH, MR: Well, your Honour, the thing is - I think one of the things in JT is that it's important that these matters are heard straight away when an application is put up. So - - -
HER HONOUR: I've already indicated it needs to be dealt with expeditiously and, quite frankly, these matters need to be listed for a trial because his Honour - pardon the pun - slightly people for not dealing with things in a trial situation. He didn't want them dealt with on the papers. Okay. So I will make a note that your application is consistent with the respondent mother's position and that you're keen for it to be dealt with urgently.
MEREDITH, MR: Well, your Honour, I feel I have a right to make an application - - -
HER HONOUR: Sorry?
MEREDITH, MR: - - - and have it heard today. And I would like to make submissions and if your Honour would like to - - -
HER HONOUR: Yes. I'm not going to allow you to make submission today.
MEREDITH, MR: Okay.
HER HONOUR: I've got your application. I know what you're trying to achieve but I can't just have a hearing on a date where I'm here to (a) deliver decisions, (b) on a procedural date. It needs to be programmed. As a matter of fairness to all of the parties, it will be done as quickly as possible. So I'm very keenly aware of what is raised in that decision but the difficulty for us is from a practical perspective.
And, quite frankly, I don't have the resources in this court that perhaps the Supreme Court might manage, and I don't know until I hear from the listings coordinator what we're going to be able to manage from an urgency perspective. I am completely with you on the issue of urgency. All right? So please don't feel that your application has been fobbed off. It has not. I have certainly noted it and it will be programmed as quickly as we can, Mr Meredith (ts 22 - 23).
While no doubt everyone would like the matter to be heard urgently, courts, and especially the Children's Court, have many matters which must be resolved expeditiously. There has to be some degree of case management and scheduling. Assuming there is a right of appeal, there are no reasonable prospects of success on ground 1. There was no procedural unfairness.

Ground 2

2.the learned magistrate made an error of law in finding that she was not required to hear or decide the appellant's application regarding placement of the child.

Leave is also refused on ground 2. The magistrate made no such error for the reasons given. She did not say she was not required to hear or decide the application. She was disqualified from hearing and deciding Mr Meredith's application regarding placement of the child. Plainly she recognised that the application had to be heard and determined. That was why she adjourned it for hearing.
The appellant's argument in support of ground 4 was that the children were deemed to be returned to the mother in August 2013 and that the appropriate way for the Department to act was to make an application for an interim order not to apprehend the children pursuant to s 37.
The appellant agreed that this was a contentious issue.
Mr Beckerling who appeared for the mother, made a submission, not made by counsel at the hearing before the magistrate, to the effect that the action taken in June 2014 by DCP was an ineffective and invalid use of the power and did nothing to obviate the pre‑existing obligation that the children be returned.
Mr Childs, on behalf of DCP, asserted that the power exercised under s 37 in relation to SA on the 13 June 2014 was within power.
The magistrate, as I have said, did not resolve this issue but effectively referred it for full argument at the adjourned hearing.
Persisting with the submission that the events of 13 and 16 June 2014 were invalid, the appellant changed course somewhat arguing that although the application may have been filed within time by the provision of the Magistrates Court (Civil Proceedings) Rules 2011 (WA) r 110 the application was not supported by an affidavit so the application was not made in time. He said:
There may have been an affidavit filed but it was not in support of the orders (ts 11).
Mr Childs, without objection, handed up a copy of an affidavit of Karina Araya, Senior Child Protection Worker, filed on 16 June 2014 where she deposes:
7.[SA] and [C] were taken into provisional protection and care pursuant to section 37 of the Act on 13 June 2014.
8.I make this affidavit in support of an application that the children remain in provisional protection and care pursuant to section 133(2)(b).
9.I make this affidavit in support of a Protection Order (until 18) application made pursuant to Sections 44 and 57 of the Act.
The affidavit then sets out the basis for the application and the events leading to it.
Clearly the application under s 37 was supported by an affidavit and this submission is without merit.
Assuming, without deciding, that there is an appealable finding, order, or decision, leave to appeal is required for each ground and leave must be refused unless a ground establishes a reasonable prospect of success: Criminal Appeals Act 2004 (WA) s 9(2). None of the grounds have reasonable prospects of success and leave is refused.
In any event, I do not consider that the magistrate's rulings are attended by sufficient doubt to justify a grant of leave. The application seeks to challenge a decision made in the course of very lengthy and ongoing proceedings which should be allowed to continue to completion before a magistrate who will have all of the material relevant to both the interim application and the substantive application available. There is no injustice in leaving the magistrate's programming orders undisturbed.