MJW v The Chief Executive Officer of the Department for Child Protection - [2012] WASCA 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MJW -v- THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION [2012] WASCA 221

CORAM: McLURE P
PULLIN JA
BUSS JA

HEARD: 24 AUGUST 2012

DELIVERED : 31 OCTOBER 2012

FILE NO/S: CACR 58 of 2012

BETWEEN: MJW
Appellant
AND
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MAZZA J
Citation  :MJW -v- THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION [2012] WASC 66
File No  :SJA 1041 of 2011

Catchwords:

Protection and care of children - Magistrate made protection orders (until 18) in respect of the appellant's children - Supreme Court judge refused the appellant leave to appeal against the magistrate's orders - No material error of law or fact by the judge - Appellant's grounds of appeal not reasonably arguable - Leave to appeal refused

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 41, s 42(1)
Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 9, s 28(2), s 44(1), s 54, s 55, s 56, s 57, s 58, s 59, s 67, s 68, s 148
Criminal Appeals Act 2004 (WA), s 9, s 14(2), s 16(2), s 18

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Department for Child Protection

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

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

McLURE P: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant has applied to this court for leave to appeal against a judgment of Mazza J (the primary judge).
His Honour dismissed an appeal by the appellant against protection orders (until 18) made on 29 March 2011 by Magistrate Schwass in the Children's Court of Western Australia.
The protection orders (until 18) were made under s 68 of the Children and Community Services Act 2004 (WA) (CCS Act) in respect of the appellant's three children, namely, L (born in March 2002), C (born in February 2005) and S (born in August 2006).

Overview of the background facts and circumstances

The appellant was born in May 1981. Her upbringing was fraught with difficulty. Her mother was unable properly to care for her and physically abused her. During her adolescence, the appellant was placed with numerous foster carers. She was psychologically damaged as a child and the damage has not been overcome.
Prior to about 8 December 2008, the appellant's children (L, C and S) were in her care. On or about 8 December 2008, officers of the respondent (the CEO) apprehended the children. On 11 December 2008, the children were placed in provisional care. Since 11 December 2008, they have been cared for in foster homes arranged by the CEO.
On 17 December 2008, the CEO filed an application in the Children's Court for protection orders (time‑limited) under s 44, read with s 54 and s 55, of the CCS Act. Later, the CEO amended the application to seek protection orders (until 18) under s 57 and s 58 of the CCS Act. The appellant opposed the CEO's application.
The CEO's application was heard by Magistrate Hogan. On 16 September 2010, his Honour made a protection order (time‑limited), for a period of six months, in respect of each child. His Honour said, in his oral reasons delivered on 16 September 2010, that the appellant should undertake psychological counselling, and increase her knowledge of behaviours appropriate for the protection of her children, with a view to the appellant resuming her role as their carer.

Pursuant to s 143 of the CCS Act, on 21 September 2010 the CEO filed a proposal for the wellbeing of each child.
On 22 December 2010, the appellant filed an application in respect of each child under s 67 of the CCS Act claiming, in substance, an order for the revocation of the subsisting protection order (time‑limited).
On 21 January 2011, the CEO filed an application in respect of each child under s 68 of the CCS Act for the revocation of the subsisting protection order (time‑limited) and the making of a protection order (until 18) or 'such further protection order as the court may deem fit to extend the period during which the [CEO] shall have the legal parental responsibility for the child'.
The appellant's applications and the CEO's applications were heard together by Magistrate Schwass. The appellant's applications were dismissed and the CEO's applications were granted. The subsisting protection orders (time‑limited) were revoked and protection orders (until 18) were made.

The CCS Act: relevant provisions

The objects of the CCS Act, as stated in s 6, include:
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care.
By s 7, relevantly, the Children's Court, in performing a function or exercising a power under the Act in relation to a child, must regard the best interests of the child as the paramount consideration.
Section 8(1) enumerates various matters that must be taken into account in determining, for the purposes of the Act, what is in a child's best interests. Section 8(2) provides that s 8(1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.
Section 9 sets out various principles that must be observed in the administration of the Act.
Part 4 is headed, 'Protection and care of children'.
Section 28(2) provides that, for the purposes of pt 4, a child is 'in need of protection' if:
(a)the child has been abandoned by his or her parents and, after reasonable inquiries ‑
(i)the parents cannot be found; and
(ii)no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
(b)the child's parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
(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;
(ii)sexual abuse;
(iii)emotional abuse;
(iv)psychological abuse;
(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.
Division 3 of pt 4 is headed, 'Protection orders'. It comprises s 42 ‑ s 73.
Division 3 makes provision for several types of protection orders including a protection order (time‑limited) and a protection order (until 18).
Section 44(1) provides, in substance, that an application to the Children's Court for a protection order can be made only by the CEO.
Section 54, s 55 and s 56 make provision in respect of protection orders (time‑limited), as follows:
54.Protection order (time‑limited)
(1)A protection order (time‑limited) is an order giving the CEO parental responsibility for a child for the period specified in the order.
(2)While a protection order (time‑limited) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.
55.Duration of protection order (time‑limited)
(1)A protection order (time‑limited) remains in force for the period specified in the order unless it is extended or revoked under section 56 or revoked under Subdivision 7.
(2)The period specified in the order must not exceed 2 years and must end before the child reaches 18 years of age.
56.Extension of protection order (time‑limited)
(1)The CEO may apply to the Court for the extension of a protection order (time‑limited).
(2)An application under subsection (1) may be made at any time while the order is in force but only after a review of the care plan for the child has been carried out under section 90.
(3)If an application under subsection (1) is made but not determined before the day on which the order would otherwise expire, the order remains in force until the application is determined.
(4)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so ‑
(a)extend the order for a period not exceeding 2 years that ends before the child reaches 18 years of age; or
(b)revoke the order and, subject to this Part, make another protection order in respect of the child.
(5)A protection order (time‑limited) may be extended more than once under this section.
(6)If, on an application under subsection (1), the Court is satisfied that each party to the initial proceedings consents to the application, the Court may extend the order in the absence of the parties.
(7)The reference in subsection (6) to each party to the initial proceedings does not include the child unless ‑
(a)the child has legal representation; or
(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.
Section 57, s 58 and s 59 make the following provision concerning protection orders (until 18):
57.Protection order (until 18)
(1)A protection order (until 18) is an order giving the CEO parental responsibility for a child until the child reaches 18 years of age.
(2)While a protection order (until 18) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.
58.Restriction on making protection order (until 18)
The Court must not make a protection order (until 18) in respect of a child unless the Court is satisfied that long‑term arrangements should be made for the wellbeing of the child.
59.Duration of protection order (until 18)
A protection order (until 18) remains in force until the child reaches 18 years of age unless it is revoked under Subdivision 7.
Section 67(1) provides, in substance, that a person who was a party to the proceedings in which a protection order was made may apply to the Children's Court for the revocation of the protection order. Section 67(2) provides that, on an application under s 67(1), the Children's Court may, if satisfied that it is in the best interests of the child to do so, confirm the order, revoke the order or revoke the order and, subject to pt 4, make another protection order in respect of the child.
Section 68(1) provides that the CEO may apply to the Children's Court for the revocation of a protection order and the making of another protection order in respect of a child. Section 68(5) provides that, on an application under s 68(1), the Children's Court may, if satisfied that it is in the best interests of the child to do so, revoke the order and, subject to pt 4, make the protection order sought or another protection order in respect of the child.

Appeal to the primary judge: relevant appellate jurisdiction

Part 5 of the Children's Court of Western Australia Act 1988 (WA) is headed 'Review and appeal'. It comprises s 40 ‑ s 43.
By s 41, subject to pt 5, an appeal against a decision of the Children's Court, when constituted so as not to consist of or include a judge, may be made under and subject to pt 2 of the Criminal Appeals Act 2004 (WA).
Section 42(1) provides that, subject to the 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, relevantly, pt 4 of the CCS Act, the finding, order or other decision may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act, as if it were a decision by a court of summary jurisdiction, by, amongst others, the CEO or the parent or guardian of the child in relation to whom the application was made.

The grounds of appeal before the primary judge

The grounds of appeal relied on by the appellant before the primary judge read:
1.The learned Trial Magistrate erred in fact and in Law when he failed to give sufficient weight to the verdict of his Brother Magistrate delivered less than six months prior.
2.The Learned Trial Magistrate did not give any weight to the failure of the Department of Child Protection to take any active step toward reunification in accordance with His Brother Magistrate's verdict 'That reunification should take place within six months*' from the date of that verdict. (emphasis in original)
3.The Learned Magistrate did not give any credence to the changes made by the Appellant in seeking out and commencing treatment and receiving support from her Psychiatrist Dr D Veltman.
4.The Learned Magistrate gave undue weight to the report of the Psychologist as well as disregarding the fact that the Psychologist had not seen the children or the Appellant for at least (12*) months. (emphasis in original)
By s 9(1) of the Criminal Appeals Act, leave to appeal was required for each ground.
The primary judge held that none of the grounds of appeal had a reasonable prospect of success. He refused leave to appeal. The appeal was therefore taken to have been dismissed. See s 9(3) of the Criminal Appeals Act.

The primary judge's reasons in relation to ground 1

The primary judge decided that ground 1 had not been made out. He said:
Magistrate Schwass was clearly aware of Magistrate Hogan's decision and the reasons for it. Those reasons were tendered in evidence as exhibit 'R'. Magistrate Schwass referred to them in his reasons. The evidence before Magistrate Schwass and the findings that he made in relation to that evidence, indicated that Magistrate's Hogan's hope that the appellant could address her psychological problems and her deficient parenting skills had not eventuated. Magistrate Schwass had the advantage of the evidence of Ms Piggott. This evidence showed that the appellant's psychological problems were likely to be entrenched, that the appellant was unable to protect the children from harm, was unable to properly provide for their needs and would put her needs and wishes above those of her children. Finally, the evidence before Magistrate Schwass established to his satisfaction that the appellant could, or would not make any significant change within a period of two years, despite her assurances to the contrary and was not cooperating with the [CEO] [148].

The primary judge's reasons in relation to ground 2

Christina Byrd is a senior child protection worker employed by the CEO. On 16 July 2009, she became the case manager for the children. In an affidavit sworn 21 January 2011, which was tendered in the proceedings before Magistrate Schwass, Ms Byrd deposed that the appellant had not engaged with the Department for Child Protection in working towards her reunification with the children. Ms Byrd said that the appellant:
(a)was difficult to contact;
(b)did not make herself available to discuss the welfare of the children;
(c)placed her needs above the children;
(d)did not let the Department know of other commitments which she had that interfered with her contact visits;
(e)discussed issues with the children at contact visits which were distressing for them;
(f)continued to be itinerant;
(g)continued to live in shared accommodation;
(h)had declined to attend a 'signs of safety' meeting;
(i)had declined to attend parenting and domestic violence courses;
(j)had declined to seek financial counselling; and
(k)refused to sign various consent to release information forms, including one in relation to Dr Veltman.
Dr Dulcie Veltman is a consultant psychiatrist. She works with adult survivors of childhood abuse. She does not work with children and has no expertise in the child welfare area. The appellant has consulted Dr Veltman on numerous occasions for psychotherapy. The first consultation occurred on 1 October 2010.
Magistrate Schwass accepted Ms Byrd's evidence and found that the appellant was not a credible witness.
The primary judge decided that the proposition which underpinned ground 2 could not be sustained. As a result, the ground had not been made out. He explained:
Magistrate Schwass made no finding that the [CEO] had failed to take any active steps to bring about reunification. The clear effect of Magistrate Schwass' findings was that the appellant had failed to cooperate with the [CEO] with respect to the implementation of Magistrate Hogan's order. It is plain from Magistrate Schwass' acceptance of Ms Byrd's evidence and his finding that the appellant was not a credible witness, that the [CEO] had not, as alleged, ignored Magistrate Hogan's order and had attempted to work with the appellant towards the goal of reunification. However, the appellant had been unable or unwilling to do so [151].

The primary judge's reasons in relation to ground 3

The appellant clarified with the primary judge that the point sought to be raised in ground 3 was that she, and not the CEO, had arranged the counselling contemplated by Magistrate Hogan. According to the appellant, this demonstrated her genuine desire to work towards reunification with the children and reflected poorly on the CEO's attitude towards Magistrate Hogan's orders.
Magistrate Schwass referred in his reasons for decision to parts of Ms Byrd's affidavit relating to Dr Veltman. Ms Byrd deposed that the appellant had refused to sign a consent form permitting the CEO to 'speak and collaborate' with Dr Veltman. Ms Byrd also deposed that, as a result of this refusal, 'it is impossible to determine whether current treatment is addressing child protection and preventing concerns'. As I have mentioned, Magistrate Schwass accepted Ms Byrd's evidence.
Dr Veltman prepared a report dated 10 January 2011, which was tendered in the proceedings before Magistrate Schwass. She expressed the view that the appellant did not have 'any form of psychotic illness'. However, Dr Veltman said that the appellant did have a complex post‑traumatic stress disorder. The primary judge decided that it was 'clear' from Dr Veltman's evidence that this diagnosed disorder was serious and required lengthy and regular treatment [157].
The primary judge found that, in view of Magistrate Schwass' acceptance of Ms Byrd's evidence, it was impossible for the magistrate to have sensibly seen the appellant's actions as assisting her case in any material respect.
The primary judge concluded that ground 3 had no merit.

The primary judge's reasons in relation to ground 4

Samantha Piggott is a forensic psychologist. She was retained by the CEO to psychologically assess the appellant, S's biological father (DNS) and L. Ms Piggott prepared a report dated 19 January 2010.
Magistrate Schwass found that on the evidence, particularly Ms Piggott's evidence, the likely effect on the children of a return to the appellant's care would be detrimental. The children were settled with their current carers. His Honour said that any disruption to the wellbeing of the children, especially in the case of L, came from any contact they had with the appellant.

The primary judge rejected the allegations in ground 4 that Magistrate Schwass gave 'undue weight' to Ms Piggott's evidence and that he had disregarded the fact that Ms Piggott had not seen the children or the appellant since the date of her report (that is, 19 January 2010).
The primary judge said:
His Honour took into account that Ms Piggott had not seen the children and the appellant for over a year when assessing Ms Piggott's evidence. Nevertheless, his Honour accepted the opinions of Ms Piggott, notwithstanding this fact. I am of the opinion that he was entitled to do so. I note that it has not been suggested that any material event has occurred in the intervening period which undermines the substance of her opinions.
In her written submissions the appellant criticised his Honour for accepting the evidence of Ms Piggott 'because she only liaised with the department'. This criticism is inaccurate. While Ms Piggott certainly communicated with the department and had the benefit of information provided to her by the department, her report as to the appellant's psychological state and suitability to undertake the care of the children was derived in large measure from her six hour interview with the appellant as well as her observations of how the children interacted with her during an observed contact visit.
The appellant also asserted in her submissions in support of this ground, that the evidence of Ms Piggott did not add any information to that which was before Magistrate Hogan. This is not an accurate statement. The evidence of Ms Piggott added significantly to the information that was before Magistrate Hogan. Ms Piggott's evidence provided a forensic psychological analysis of the appellant which showed just how serious and entrenched her personality problems were likely to be and how, those problems were such that she was unable to properly and effectively care for the children. It is clear from Ms Piggott's evidence that the 'work' the appellant had to do in order to address the psychological issues she had would take much longer than 6 months. Although this is ultimately a matter of speculation, it is hard to envisage Magistrate Hogan making a protection order (time limited) for a period of only 6 months had the evidence of Ms Piggott been before him. Indeed, it was Dr Veltman's opinion that the appellant required more than six months counselling: exhibit 1. Magistrate Hogan was considerably disadvantaged by not having any forensic psychological evidence before him [161] ‑ [163].
The primary judge decided that ground 4 had not been made out.

Appeal to this court: relevant appellate jurisdiction

Section 16(2) of the Criminal Appeals Act confers on the appellant a right of appeal to this court against the decision of the primary judge.
By s 9, read with s 18, of that Act:
(a)the leave of this court is required for each ground of appeal; and
(b)after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of success.

The 'natural limitations' of an appellate court proceeding wholly or substantially on the record

Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)

The grounds of appeal before this court

The grounds of appeal relied on by the appellant before this court are set out in the schedule to these reasons.

Grounds 1 and 2

Ground 1 alleges, in substance, that the primary judge erred in giving insufficient weight to the evidence.
Ground 2 alleges, in substance, that the primary judge erred in giving insufficient weight to the allegation that the Department for Child Protection ignored the original orders made by Magistrate Hogan.
These grounds are not reasonably arguable.
The primary judge dealt comprehensively with each of the grounds of appeal before him. No material error or law or fact is apparent from his reasons. His Honour's task did not include a review of the evidence before Magistrate Schwass independently of the grounds of appeal.

Ground 3

Ground 3 alleges, in substance, that the primary judge erred in relation to 'the great amount of res judicata that has been through the entire case going back as far as 2008'.
This ground is opaque. It appears to reproduce the essence of ground 1 of the appeal before the primary judge, as developed in the appellant's submissions to his Honour.
The primary judge said:
Ground 1, as explained in the written submissions seeks, to invoke the doctrine of res judicata.
The appellant submitted that the doctrine operated to preclude Magistrate Schwass making a protection order which was different to the one made by Magistrate Hogan and 'negative' to her. The appellant also alleged that Magistrate Schwass ignored the decision of Magistrate Hogan.
…
The proceedings before Magistrate Schwass were proceedings under the Act to vary or revoke the order made by Magistrate Hogan. The existence of these provisions contemplate that there will be circumstances relating to children which justify a change to a protection order, the imposition of a different protection order or the revocation of the order originally proposed. The paramount consideration in such proceedings 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. It would be wrong to apply for a revocation or variation of the order without identifying some material change of circumstances.
In considering whether to vary or revoke an order, it is relevant to have regard to the original order and the reasons why the order was made. The weight that is given to these matters is for the court hearing the application to vary or revoke. Ultimately, the court must decide what is in the best interests of the children [140] ‑ [141], [146] ‑ [147].
See also the passage from his Honour's reasons which I have set out at [33] above.
Ground 3 is not reasonably arguable. The primary judge was correct, for the reasons he gave, in dismissing ground 1 of the appeal before him. Nothing in the appellant's submissions to this court demonstrates any material error of law or fact as alleged in ground 3.

Ground 4

Ground 4 alleges that the appeal was 'originated due to inadmissible evidence being allowed into a second trial to overrule the first decision given that the evidence was tried and dismissed'.
Although this ground is obscure, the alleged inadmissible evidence appears to be that of Ms Piggott.
Ground 4 is not reasonably arguable.
For the reasons given by the primary judge in the context of grounds 1 and 4 of the appeal before him, Magistrate Schwass was entitled to accept and rely upon Ms Piggott's evidence in reaching the findings and making the orders in question.

Grounds 5, 6, 7, 9, 13, 14, 15, 16, 17, 18 and 20

None of grounds 5, 6, 7, 9, 13, 14, 15, 16, 17, 18 or 20 is a proper ground of appeal. No material error of law or fact by the primary judge is alleged. None of the grounds is reasonably arguable.

Ground 8

Ground 8 alleges, in substance, that the primary judge erred in taking into account 'the position of the independent children's lawyer'.
Section 148(2) of the CCS Act provides:
If, in protection proceedings, it appears to the Court [that is, the Children's Court] that the child ought to have separate legal representation, the Court may order that the child be separately represented by a legal practitioner.
The expression 'protection proceedings' is defined in s 3 to mean proceedings in respect of, or in connection with, a 'protection application' (being an application to the Children's Court for a protection order) or other application to the Court under pt 4 (excluding an application under section 65, 73 or 126).
By s 148(4), a legal practitioner who represents a child in protection proceedings must act on the instructions of the child if the child:
(a)has sufficient maturity and understanding to give instructions; and
(b)wishes to give instructions,
and in any other case must act in the best interests of the child.
In the proceedings before Magistrate Schwass the appellant's children were represented by a legal practitioner, Ms R H Reader. His Honour, in performing a function or exercising a power under the CCS Act in relation to the children, was bound to regard the best interests of the children as the paramount consideration.
The appellant joined the CEO as first respondent, S's biological father, DNS, as second respondent and Ms Reader as third respondent in the appeal before the primary judge. His Honour heard from counsel for the CEO and from Ms Reader. DNS did not appear either by counsel or in person. His Honour was entitled to receive submissions from Ms Reader in her capacity as a representative of the appellant's children. He was entitled to take her submissions into account.
Ground 8 is not reasonably arguable.

Grounds 10, 11, 12 and 19

Ground 10 alleges, in substance, that the primary judge did not give 'any credence' to 'the changes' the appellant had made.
Ground 11 alleges, in substance, that the primary judge did not give any weight to the Department for Child Protection's alleged failure 'regarding reunification' or to alleged errors by the Department in dealing with the appellant's case.
Ground 12 alleges, in substance, that the primary judge did not give any weight to the fact that the appellant had allegedly arranged and commenced psychotherapy with Dr Veltman.
Ground 19 alleges, in substance, that the primary judge erred in failing to acknowledge the appellant's efforts in relation to her children when they were in her care.
Grounds 10 and 12 are similar to the complaint made by the appellant in relation to Magistrate Schwass in ground 3 of the appeal before the primary judge. Ground 11 is similar to the complaint made in ground 2 of that appeal.
The appeal to the primary judge was an appeal by way of rehearing on the record before Magistrate Schwass. It was not an appeal de novo.
The primary judge was not entitled to intervene (for example, by allowing the appeal and setting aside or varying the decision of Magistrate Schwass) unless the appellant established that the magistrate had made a material error of law or fact or that a miscarriage of justice occurred in the proceedings at first instance. In any event, by s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the primary judge was empowered to dismiss the appeal if he considered that no substantial miscarriage of justice had occurred. The appellant was confined, in endeavouring to establish a material error of law or fact or a miscarriage of justice, to her grounds of appeal and the record of the proceedings before Magistrate Schwass together with any additional evidence admitted by the primary judge under pt 4 of the Criminal Appeals Act. The appellant did not make an application before the primary judge to adduce any additional evidence. Mere assertions of fact by the appellant from the bar table were not admissible as evidence. The appeal before the primary judge was therefore confined to the appellant's grounds of appeal and the record of the proceedings at first instance.
The primary judge noted:
In her oral submissions before me, the appellant made a number of statements from the bar table in which [she] sought to, in effect, give evidence and inform me of matters which she thought were relevant which had occurred since Magistrate Schwass' decision. I repeatedly told her that I had to decide the case on the evidence that was before Magistrate Schwass.
Subsequent to the hearing of the appeal on 5 December 2011, the appellant forwarded to the court an email purporting to provide further information which the appellant thought I should know about. No doubt the appellant was trying to be helpful, but at no stage has the appellant made an application to adduce additional evidence and so material indicating what had happened since Magistrate Schwass' decision is irrelevant. In any event, even if the material had have been before me, it was not of such a nature as to call into question the correctness of Magistrate Schwass' decision [165] ‑ [166].
The primary judge, as he was obliged to do, addressed the appellant's grounds of appeal by reference to the record of the proceedings before Magistrate Schwass. No error of law or fact is discernible from his Honour's reasons in relation to those grounds.
None of grounds 10, 11, 12 or 19 is reasonably arguable.

The outcome of the appeal to this court

The primary judge's decision to refuse leave to appeal was correct. He did not make any material error of law or fact in dealing with the grounds of appeal before him.
None of the appellant's grounds of appeal to this court has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
Finally, I note that if a material change of circumstances occurs after 29 March 2011, being the date on which Magistrate Schwass made the protection orders (until 18), it will be open to the appellant to make application to the Children's Court under s 67(1) of the CCS Act for the revocation of those orders. However, the mere occurrence of a material change of circumstances will not, of course, require the revocation of the protection orders (until 18). By s 67(2), on an application under s 67(1), the Children's Court may, if satisfied that it is in the best interests of the children to do so, confirm the orders, revoke the orders or revoke the orders and, subject to pt 4, make other protection orders in respect of the children.

SCHEDULE

Grounds of Appeal

1.The justice erred in fact and in law with [sic] giving sufficient [sic] weight to the evidence before him and the previous magistrate from the primary court when dealing with the appeal against the until 18 [sic].
2.The justice erred in fact and in law when he chose to give insufficient weight to the fact the department for child protection ignored the original order that was passed down in the primary court.
3.The justice erred in fact and in law to the great amount of res judicata that has been through the entire case going back as far as 2008.
4.The matter of appeal was originated due to inadmissible evidence being allowed into a second trial to overrule the first decision given that the evidence was tried and dismissed.
5.Seeking grounds for leave to appeal.
6.Reconsideration of previous decision by the justice.
7.The continued denial of contact between myself and my children.
8.The justice erred in fact and in law to even take the position of the independent children's lawyer into consideration.
9.I seek to reconsider or revoke the previous appeal decision in the Supreme Court and also to reconsider the until 18 appeal [sic].
10.The justice did not give any credence to the changes made by myself the appellant.
11.The justice did not give any weight to the failure of the department for child protection regarding reunification or the errors when dealing with the case regarding my family and my children.
12.The justice did not give any weight to me the appellant seeking out my own and commencing in therapy with Dr Veltman despite the department for child protection not being able to commence me [sic] in any therapy for numerous months.
13.The sexual assault of my daughter [C] in the care of the department for child protection.
14.Documents presented to the primary court about my daughter [L] are [sic] abuse in care.
15.Neglect of my daughter [C] being sent to school holding her underwear up as they had no elastic to hold themselves up.
16.I believe leave to appeal for each ground is required.
17.The reasons for the reunification were for me the appellant to undertake some psychological counselling in which [sic] was done.
18.Paragraph 11 of Justice Mazza's judgment reasoning's clearly states despite Magistrate Hogan's order, the children have not been reunited with the appellant.
19.The justice erred in fact and law as well to acknowledge the efforts I did when the children were in my care.
20.If the appeal is approved I request that an injunction be put into an order.