MJW v The Chief Executive Officer of the Department for Child Protection
[2012] WASC 66
•28 FEBRUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MJW -v- THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION [2012] WASC 66
CORAM: MAZZA J
HEARD: 5 DECEMBER 2011
DELIVERED : 28 FEBRUARY 2012
FILE NO/S: SJA 1041 of 2011
BETWEEN: MJW
Appellant
AND
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION
First RespondentDNS
Second RespondentRUTH READER
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE SCHWASS
File No :CC 7332-7334 of 2008
Catchwords:
Family law - Application for leave to appeal against protection orders - Whether res judicata doctrine violated - Whether Department for Child Protection ignored order - Whether magistrate failed to take into account relevant considerations - Whether undue weight given to particular evidence
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 42
Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 9, s 28, s 32, s 46, s 54, s 55, s 56, s 57, s 58, s 67, s 90, s 143,
Criminal Appeals Act 2004 (WA), s 39
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Mr D K Childs
Second Respondent : No appearance
Third Respondent : Ms R H Reader
Solicitors:
Appellant: In person
First Respondent : Department for Child Protection
Second Respondent : In person
Third Respondent : Ms R H Reader
Case(s) referred to in judgment(s):
Chief Executive Officer of the Department for Child Protection v MJW [2011] WACC 7
Ex parte Semple v Heijer (Unreported, WASCA; Library No 920698, 22 December 1992)
In the Marriage of Houston v Sedorkin (1979) FLC 90‑699
In the Marriage of Rice v Asplund (1975) 6 Fam LR 570
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Rojanasaroj v Rachan [No 2] [2011] WASC 271
MAZZA J: The appellant wishes to appeal against protection orders (until 18) made by his Honour Magistrate Schwass on 29 March 2011 in favour of the first respondent in respect of the appellant's three children, L, born 13 March 2002, C, born 1 February 2005 and S, born 24 August 2006.
An appeal against those orders is available pursuant to s 42 of the Children's Court of Western Australia Act 1988 (WA). That section provides that such an appeal is to be determined in accordance with Pt 2 of the Criminal Appeals Act 2004 (WA).The appeal, subject to the court's power to admit evidence, must be decided on the evidence and material that was before the lower court: s 39(1) of the Criminal Appeals Act.
The appellant, who has represented herself in these proceedings, relies on four grounds of appeal. They are expressed as follows:
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)
Section 9(1) of the Criminal Appeals Act provides that leave to appeal is required for each ground. On 20 June 2011, an order was made that the application for leave to appeal be heard at the same time as the appeal.
The second respondent is S's natural father, but not the father of L and C. The fathers of L and C are not known. Although the second respondent took part in the proceedings in the Children's Court, he did not participate in this appeal.
A separate representative for the children, Ms Reader, participated in both the proceedings below and in this appeal. She is the third respondent.
Background
The appellant was born on 27 May 1981. It is clear that she has had a troubled life. Her mother was physically abusive towards her and was unable to care for her properly. In her adolescence she was placed with a number of foster carers. She is clearly psychologically damaged and the effects of that damage remain.
Until about 8 December 2008, all three children were in her care. However, shortly after that date, the children were apprehended by officers of the first respondent and, on 11 December 2008, they were placed in provisional care. Since that time, the children have been living in foster homes arranged by the first respondent. On 17 December 2008, the first respondent filed proceedings in the Children's Court seeking a protection order (time limited) in respect of each child. Later, the application was amended, seeking a protection order (until 18). The appellant opposed this application.
The matter proceeded to a defended hearing which spanned 10 hearing days before his Honour Magistrate Hogan in the Perth Children's Court. On 16 September 2010, his Honour delivered his oral reasons. He found that the children had suffered harm as a result of neglect. He made, in respect of each child, a protection order (time limited) for a period of 6 months. I will say more about these proceedings and his Honour's reasons in due course. It is sufficient, at this point, to observe that Magistrate Hogan's express intention was that the appellant undertake psychological counselling and learn more about behaviours designed to protect her children, with a view to the children being reunited in her care: exhibit R, ts 15 ‑ 17.
On 21 September 2011, the first respondent, as required by s 143 of the Children and Community Services Act2004 (WA) (the Act), filed a proposal for the wellbeing of each child: exhibit A, affidavit of Christina Byrd, annexure B.
Despite Magistrate Hogan's order, the children have not been reunited with the appellant. The reasons for this were disputed before Magistrate Schwass.
On 22 December 2010, the appellant filed applications in respect of each child, seeking in effect an order revoking the order made by Magistrate Hogan and seeking the return of the children to her care. On 21 January 2011, the first respondent filed, in relation to each child, applications seeking to revoke the order made by Magistrate Hogan and to make 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'. Both the second and third respondents sought a two‑year extension of Magistrate Hogan's order.
After a five day hearing, the appellant's applications were dismissed. The first respondent's applications were granted and the orders the subject of this appeal was made: Chief Executive Officer of the Department for Child Protection v MJW [2011] WACC 7.
The relevant statutory framework
It is necessary at the outset to describe the relevant statutory framework. The principal legislation governing the proceedings is the Act.
The objects of the Act are set out in s 6. It is unnecessary to refer to all of them. The ones which are most relevant are:
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(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;
…
Section 7 provides that the Children's Court, when 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 sets out the matters which must be taken into account in determining what is in the child's best interests. Those matters include:
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
…
(e)the attitude to the child and to parental responsibility demonstrated by the child's parents;
(f)any wishes or views expressed by the child;
(g)the importance of continuity and stability in the child's living arrangements;
(h)the need for the child to maintain contact with the child's parents, siblings or other significant people in the child's life;
…
(k)the child's physical, emotional, intellectual, spiritual developmental and educational needs; [and]
…
(m)the likely effect on the child of any change in the child's circumstances.
Section 9 sets out the principles that must be observed in the administration of the Act. These include:
(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
(c)the principle that every child should be cared for and protected from harm;
(d)the principle that every child should live in an environment free from violence;
(e)the principle that every child should have stable, secure and safe relationships and living arrangements;
(f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;
(g)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(ha)the principle that if a child is removed from the child’s family then, so far as is consistent with the child’s best interests, planning for the child’s care should occur as soon as possible in order to ensure long‑term stability for the child.
…
Part 4 of the Act deals with the protection and care of children. A child is, for the purposes of this Part, in need of protection if, among other things, the child has suffered or is likely to suffer harm as a result of 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: s 28(2)(c)(v) of the Act. Alternatively, a child is in need of protection if the child has suffered or is likely to suffer harm as a result of the child's parents being unable to provide or arrange the provision of effective medical, therapeutic or other remedial treatment for the child: s 28(2)(d)(ii) of the Act.
Among the powers that the first respondent may exercise under this Part is to take a child into provisional protection and care and to apply to the Children's Court for a protection order: s 32(1)(e), read with s 32(2)(b) and (c) of the Act. There are various kinds of protection orders that may be made under the Act. They include a protection order (time‑limited) and a protection order (until 18). No protection order can be made unless the court is satisfied that making the order would be better for the child than making no order at all: s 46 of the Act.
A protection order (time‑limited) gives the first respondent parental responsibility for a child for the period specified in the order, to the exclusion of any other person, for a period which must not exceed 2 years and must end before the child reaches 18 years of age: ss 54 and 55 of the Act.
A protection order (until 18) gives the respondent parental responsibility for a child, to the exclusion of any other person, until the child reaches 18 years of age: s 57 of the Act. The court must not make such an order unless it is satisfied that long‑term arrangements should be made for the wellbeing of the child: s 58 of the Act.
The Children's Court has the power, if it is in the best interest of a child, to extend, vary, revoke or replace any protection order. In respect of a protection order (time‑limited) that power arises under s 56 (exercisable only by the first respondent) and subdivision 7 of the Act (exercisable by the parties to the initial proceedings or a carer).
The proceedings before Magistrate Hogan and his reasons for decision
I have already described the application that was before Magistrate Hogan.
The basis upon which the first respondent made its application was neglect or, alternatively, an inability on the part of the appellant to provide effective medical, therapeutic or remedial treatment for the children.
Because the appellant herself had come to the attention of the first respondent from an early age Magistrate Hogan had before him a considerable amount of evidence about her background. That evidence revealed the details of her troubled life. In her childhood and adolescence, she suffered physical and emotional abuse, as well as neglect, by her mother. She was unwanted at home and was, over the years, accommodated in various placements, including with her maternal grandparents. None of these placements were successful. In December 1998, she was working as a prostitute. His Honour found that, as at the date of his judgment, the appellant was still 'selling sex for money': 16 September 2010, ts 5.
Magistrate Hogan found that the appellant had, as far back as 1995, a tendency to fantasise and bend the truth, and that the more recent evidence showed a tendency, on the appellant's part, to fantasise.
Magistrate Hogan noted that, as an adult, the appellant came to the attention of the first respondent after the birth of L in 2002. Reports were made to the first respondent, and Magistrate Hogan accepted, that the appellant led an active social life and often dropped L off to be cared for by L's paternal grandmother, with a dirty nappy and in a state of hunger: 16 September 2010, ts 7.
In 2003, another child, SP, was born. SP died in 2003 from SIDS.
In May 2005 or thereabouts, the appellant formed a relationship with the second respondent. That relationship has been marked by domestic violence. Magistrate Hogan noted the transience of the appellant's personal relationships, but also noted that she had 'always gone back to [the second respondent]': ts 16 September 2010, p 9.
In June 2006, the appellant moved to the Mandurah area. His Honour accepted evidence that the children were neglected. A babysitter who looked after the children over a long period of time noted that they were left in her care with dirty nappies and no food. They were described as 'disgusting' and 'unkempt': 16 September 2010, ts 8. Magistrate Hogan accepted evidence that:
Day care rang for nappies all the time. [The babysitter] often picked them up from day care: male [boarders] staying at [the appellant's] house, children sleeping on the floor. [The appellant] picking up men and bringing them home. Children calling all the men 'dad'. [The second respondent], resuming his relationship with [the appellant] when her then boyfriend was away': 16 September 2010, ts 8.
His Honour accepted that men were constantly coming to the appellant's house for the purposes of '[having] sex for money or simply random sex': 16 September 2010, ts 9.
In January 2008, the appellant took L to a general practitioner. The appellant reported 'parenting issues' to the doctor, which she attributed to L discovering the death of SH when L was only 20 months old. The appellant also reported that L had been molested by a 12‑year‑old girl and was now repeating some of those actions on one of her siblings: 16 September 2010, ts 9.
In February 2008, the babysitter referred to earlier, observed L displaying sexual behaviour while sitting on the lap of a male friend.
In March 2008, the appellant took out a violence restraining order against the second respondent. In the same month, the appellant took L to see a psychologist 'for precocious sexual behaviour', on L's part.
In May 2008, L went to live with Mr M. Mr M had looked after the appellant at various times when she was younger. Mr M had, in the past, been convicted of carnal knowledge of another child and possession of prohibited video material.
At about this time, the appellant allowed the babysitter to take C to South Australia. Magistrate Hogan found that at this point 'things had got the better of [the appellant] and she admits that she couldn't cope': 16 September 2010, ts 11.
Prior to December 2008, the appellant had been working as a prostitute, although she ceased that work by then. In December 2008, the first respondent received a report from the children's day care centre that the appellant had 'attempted suicide the night before' and that the children were 'being neglected': 16 September 2010, ts 11.
After the children were taken into provisional care, L was looked after by one foster parent, and S and C were looked after by another foster parent. The evidence before Magistrate Hogan was that the children reacted well to being in care and were happy where they were: 16 September 2010, ts 12.
In or about mid 2009, the appellant and the second respondent attended counselling.
Magistrate Hogan acknowledged that, in preparation for the trial before him, a psychologist, Ms Piggott, had prepared a report. Ms Piggott had psychologically assessed the appellant, the second respondent and L and had observed the appellant and the second respondent interact with the children. Magistrate Hogan did not admit Ms Piggott's report into evidence because she was overseas at the time of the trial and was unavailable for cross‑examination.
Magistrate Hogan noted that, at the trial before him, the first respondent's position was that reunification between the appellant and the children was not viable.
Magistrate Hogan found that the appellant had falsely passed herself off, in April 2010, as a law student, a crime scene investigator and as a person with qualifications in child care. His Honour dealt with this by saying:
I don't think there is anything sinister about it. I mean, if anyone believed that sort of thing they would be off with the fairies. In a sense it is tragic, I suppose, that this is the sort of person that she would want to be and make her children look up to her and be proud of her, but it is just a fantasy: ts 16 September 2010, ts 14 ‑ 15.
Magistrate Hogan found that each child suffered harm as a result of neglect. He gave particular emphasis to the period in which the children were residing with the appellant in Mandurah, culminating in their apprehension in late 2008.
He was not satisfied that a protection order (until 18) was justified on the evidence because, as he put it, 'There is hope that [the appellant] can turn herself around.'
Magistrate Hogan said:
So far as I can see from all the evidence she had never been - despite her background and upbringing of going back to at least when she was seven and noted to be a - she is now, 22 years later, to be a lonely and - I forget the word - distressed child - nothing has ever been done. She never set foot in a counsellor's office, which is somewhat surprising.
So she has never been tried and failed. She has certainly tried and failed with the physical aspects of raising the children, but she has never been tried and failed in terms of rehabilitation [for herself]: 16 September 2010, ts 16.
He went on to say:
[The appellant], as I said, hasn't been tried and failed. It seems that since the children were taken she has done a fair amount of what was required, in terms of going to see people and turning up at places where she needs to be. That's a fairly full agenda. She had a fair few places to go, including squeezing in contact amongst all of those things.
Magistrate Hogan concluded:
… I determine in each case that there should be a protection order, time‑limited and it should be time‑limited because that will allow [the appellant], who is the person who is going to eventually be reunified with the children. That will allow [the appellant] to carry out what is going to be necessary by way of, at least psychological counselling, and I think she realises that herself.
In order for her to carry out psychological counselling and learn more about protective behaviour to stop the children being exposed to sex, because they are too young.
So the question is then how long should it be, the time‑limited order. I am not at all satisfied that it should be for 2 years because that would allow too much time to go by to facilitate reunification. I fix, in each case, a period of 6 months: 16 September 2010, ts 16 ‑ 17.
The first respondent did not appeal against Magistrate Hogan's decision.
I observe in passing that his Honour did not in the course of his reasons, give express consideration to what was in the best interests of the children, and gave considerable weight to allowing the appellant the opportunity for psychological counselling and to 'learn more about protective behaviour'.
Proposals under s 143 of the Act
As soon as practicable after a court makes a protection order, whether time‑limited or until 18, the first respondent is obliged to file a document that outlines the proposed arrangements for the wellbeing of the child: s 143(1) and (2) of the Act (a s 143 proposal).
A s 143 proposal is also required when an extension or revocation of a time‑limited order is sought: s 143(3) and (4) of the Act.
On 21 September 2010, the first respondent filed a s 143 proposal which set out 17 'Conditions to Commence Reunification'. These were matters which the appellant was 'required to attend, engage with, and complete … before (emphasis in original) reunification will begin'.
The conditions related to matters such as:
(a)the appellant being truthful with the first respondent;
(b)the appellant maintaining an appropriate standard of accommodation for the children;
(c)arrangements for contact visits that the children were to have with the appellant; and
(d)the appellant notifying the first respondent of her 'significant partners' and any person living or staying at her residence older than 18 years.
The conditions also required the appellant to attend and engage with a 'Department approved':
(a)financial planning service;
(b)'therapeutic service' to address a range of personal issues including those relating to her family of origin, grief and loss, abandonment, domestic violence, sexual abuse, depression and her parenting;
(c)domestic violence programme; and
(d)parenting skills programme.
See affidavit of Christina Byrd, annexure B.
The s 143 proposal does not specify the time within which the conditions were to be complied with. However, given the complexity of the appellant's personal and other issues, it is evident that even with the best will in the world, it was unlikely that all the conditions could be met within the life of Magistrate Hogan's order.
The first respondent provided the appellant with a checklist of the matters she was required to perform: affidavit of Christina Byrd annexure O. The purpose of the checklist was to allow the appellant to see, virtually at a glance, what she was required to do.
A second s 143 proposal was filed on 21 March 2011, the first day of the hearing before Magistrate Schwass: exhibit AB. This proposal does not comply with the requirement in s 143(4) of the Act to include plans for long‑term stability, security and safety in the children's relationships and living arrangements. By the time it was filed the first respondent's position was clear. It was succinctly stated in this document as:
The department does not consider that reunification will be achieved by the parents in the foreseeable future.
The proceedings before Magistrate Schwass
The parties' cases
Although the appellant filed her application to revoke before the first respondent filed its application, it was agreed that the first respondent would have the carriage of the proceedings. The first respondent's case was that the appellant had made no demonstrable positive changes in her life and behaviours in the period after Magistrate Hogan's order, which enabled the children to be safely reunited with her.
The first respondent alleged that the appellant had failed to cooperate in the implementation of the first s 143 proposal. However, it was acknowledged that the appellant was receiving treatment in connection with her personal issues from a psychiatrist, Dr Dulcie Veltman, although Dr Veltman had not been approved by the first respondent.
The first respondent submitted that the appellant's personal problems, including her inability to be truthful and her lack of parenting skills, were so entrenched and the prospects of change so unlikely that it was in the best interests of the children for a protection order (until 18) to be made.
The appellant's case was in essence that the first respondent had not complied with Magistrate Hogan's order and never had any intention of doing so. The appellant alleged that the first s 143 proposal prepared by the first respondent placed unreasonable and unnecessary requirements upon her. Nevertheless, she said that she had done or had attempted to do all that was reasonably required of her to facilitate the reunion of her and the children and that she was, at the time of the hearing before Magistrate Schwass, able to care for them. In particular, she highlighted the therapeutic relationship she had established with Dr Veltman and her efforts, via online courses, to obtain qualifications to enable her to work as a counsellor.
The evidence presented to Magistrate Schwass
It is unnecessary to summarise all of the evidence presented to Magistrate Schwass. It is sufficient to summarise the evidence of the main witnesses who gave evidence.
Evidence of Christina Byrd
Ms Byrd is a senior child protection worker employed by the first respondent. She first became involved in the case in 2009 and became the case manager for the children on 16 July 2009.
In her affidavit sworn 21 January 2011, exhibit A in the proceedings, Ms Byrd set out in considerable detail the events which led to the making of the application to revoke Magistrate Hogan's order.
Ms Byrd deposed that inquiries made after the trial before Magistrate Hogan revealed that the appellant had provided the court with a false lease agreement for the premises that she was occupying at the time of that hearing, situated in Baldivis. The tendered lease agreement indicated that the lessor and owner of the premises was Martin James Walker, when in fact he was a tenant, and the real owners were a Mr and Mrs Burston.
On 16 December 2010, Ms Byrd inspected those premises, which by then the appellant had recently vacated. Mr Burston had left the premises in the state they were in when the appellant departed. Ms Byrd described the house as being 'in a state of disarray, with rubbish left in the interior of the house and obvious damage to the carpets, window coverings and walls': exhibit A, par 42.
Ms Byrd deposed that the appellant had not engaged with the department to work towards unification with the children. Ms Byrd asserted 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 contacts visits;
(e)discussed issues with the children at contact visits which were distressing 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.
Ms Byrd explained that since approximately January 2009, S and L had been living together with a carer, while C was living by herself with another carer.
Ms Byrd described S as being emotionally stable, independent and carefree. She noted that there was a possibility that, in the long term, carers who were also relatives of S may be willing to take her. Ms Byrd observed that S had a strong connection to the second respondent, but he was not in a position to care for her on a full‑time basis. Ms Byrd said S had expressed the view that she did not want to visit the appellant: exhibit A, pars 211 ‑ 216.
Ms Byrd noted that C was well settled in her current placement. Ms Byrd said that C called her current placement 'her family': exhibit A, par 222.
Ms Byrd described L as being a high needs child who had significant emotional and psychological needs. She had been receiving psychological therapy since April 2010, and it was expected that she would require ongoing long‑term intensive emotional and psychological support and services. Ms Byrd feared that if L did not receive intensive treatment, 'she will continue to emulate the choices of her mother made as a child and in most likeliness [sic] become a teenage absconder seeking out her mother's devotion and approval': exhibit A, par 238.
Ms Byrd said that the first respondent was seeking a 'one‑on‑one intensive placement' that will help support L's healthy emotional and psychological development.
Ms Byrd deposed that she had observed no great changes in the appellant's parenting abilities or lifestyle in the time that the children had been in the care of the first respondent: exhibit A, par 255.
In her oral testimony, Ms Byrd said that, on 18 March 2011, she inspected the appellant's then residence at an address Parklands. In a case note she prepared (exhibit B), she described areas of clutter in the house, especially in the appellant's bedroom. Ms Byrd also noted that there was a dirty kitchen, that the appellant was sharing the accommodation with others and that a 'for sale' sign was at the front of the house. She accepted that the property would be suitable for the appellant and the children if no‑one else was there: 21 March 2011, ts 38.
She testified that on 9 February 2011, the appellant's contact with the children had been suspended because the appellant had failed to comply with written contact guidelines she had signed.
Ms Byrd gave evidence about a claim by the appellant that she had given birth in 1995 to a child T. Ms Byrd said that enquires revealed that there were no records of such a birth.
Ms Byrd denied, in cross‑examination, that the department had not genuinely sought reunification in accordance with Magistrate Hogan's order and was not trying to help the appellant. In cross‑examination by the third respondent Ms Byrd testified that L had disclosed to her, on 21 October 2010, that at some time in the past a male friend of the appellant had touched her vaginal area: 21 March 2011, ts 87.
Ms Byrd further testified that the children were, as she put it, 'doing wonderful' in the present placements. She also said that the children had responded negatively to contact with the appellant: 22 March 2011, ts 5.
Evidence of Peta Philp
Ms Philp is a psychologist in private practice for 16 or 17 years: 23 March 2011, ts 2. Ms Philp, at the request of the first respondent, first saw L on 13 January 2010. Between then and 20 March 2011, she had seen L on approximately 30 occasions. She testified that L would require 'perhaps another year' of counselling, and maybe more as she grows older and has new challenges: 23 March 2011, ts 4. Ms Philp wrote seven reports between 13 January 2010 and 20 March 2011. These reports were tendered in evidence as exhibit N.
In her report dated 17 April 2010, Ms Philp observed that L seemed to have a number of significant emotional and social deficits.
Generally speaking, up until 16 August 2010, L was progressing well in her treatment. However, Ms Philp reported on 17 January 2011 that there had been a deterioration in L's behaviours, both at home and at school. It was thought that these behaviours coincided with contact visits with the appellant. In her report dated 20 March 2011, it was noted that since contact visits with the appellant had ceased, L's behaviours had improved again.
In her oral testimony, Ms Philp expressed the opinion that L suffers from post‑traumatic stress disorder: 23 March 2011, ts 11. Ms Philp was unable to say what caused this disorder. She noted that L would not speak to her about things that happened at home (with the appellant) that distressed her, and that L was very defensive of the appellant and did not want to say anything about her: 23 March 2011, ts 11.
Ms Philp testified that whilst L expressed the desire to go home to the appellant, she was also 'really connected' to her carer: 23 March 2011, ts 12.
Ms Philp made the point in her evidence that if a child with post‑traumatic stress disorder returned to an environment that was the cause or potentially the cause of the negative experience that led to the disorder, the child could be 'very, very damaged'. In L's case, she thought that she might develop a 'borderline personality disorder': 23 March 2011, ts 13 ‑ 14.
Evidence of Ms Samantha Piggott
Ms Piggott is a forensic psychologist. Her expertise was not challenged. She was retained by the first respondent to provide a psychological assessment of the appellant and second respondent. She also psychologically assessed L. Her report is dated 19 January 2010: exhibit L.
Ms Piggott conducted clinical interviews, which included psychometric testing, on the appellant and the second respondent. She interviewed each party for a total of six hours, in four interviews. L was interviewed for two hours at her residence. In addition, Ms Piggott observed the children interact with each of the appellant and the second respondent. In the case of the appellant, that period of observation lasted one and a half hours. Ms Piggott was provided with various documentation, including an affidavit of Christina Byrd, dated 30 November 2009, and case notes recorded for the first respondent. Both the appellant and the second respondent completed the Millon Multi Axial Inventory (MCMI-III). Each completed this assessment in a valid manner.
Ms Piggott's report is lengthy and detailed. As I mentioned earlier, as Ms Piggott was not available for cross‑examination, Magistrate Hogan did not allow the report to be adduced in evidence before him. In the proceedings before Magistrate Schwass, Ms Piggott gave evidence from the United Kingdom by telephone.
Her evidence‑in‑chief was very brief. It comprised the tender of the report. That report may be summarised as follows.
Ms Piggott noted at the outset that a full psychological assessment of both the appellant and the second respondent could not take place owing to a combination of their late attendance at some appointments or their non‑attendance at others: exhibit L, 1. Ms Piggott also noted that some of the information that she had been provided was hearsay.
Psychometric testing of the appellant revealed elevations on a number of personality scales from which it appeared that her core characteristics are her disinterest in others, lack of interest in social relationships and her emotional coldness. These characteristics were, Ms Piggott said, observed by her in the assessment process. She said that the results further indicated that the appellant was likely to be distant, detached, impersonal and would assume a peripheral role within the family. Ms Piggott said that she observed these personality features during the assessment process: exhibit L, 6.
With respect to the appellant's contact with the children, Ms Piggott's overall impression was that L's relationship with her mother was poor: exhibit L, 12. In her interview with L, the child described being physically abused by both the appellant and the second respondent: exhibit L, 13. Ms Piggott noted that L had demonstrated sexualised behaviours in the presence of her carer and the second respondent: exhibit L, 15. Ms Piggott also noted reports of behavioural difficulties and the possibility of emotional detachment. As to these things, Ms Piggott said:
Overall, it is my opinion that [L] presents as a young girl who displays many areas of significant psychological concern. It is probable that [L] presents with these issues owing to her experiences thus far. Specifically, the sexualised behaviour [L] displays may derive from her alleged experiences of sexual exploitation, sexual abuse and/or the witnessing of sexual activity between others. Secondly, her behavioural difficulties, in particular to her anger, may be attributable to the violence in which her parents have engaged in. Finally, [L]'s emotional detachment may reflect a defensive process which enables her to avoid experiencing distressing thoughts and feelings. Such a mechanism is often found with individuals who have experienced significant trauma: exhibit L, p 16.
Ms Piggott thought that it was questionable that L's difficult behaviours were as a result of finding SP dead in her cot, as alleged by the appellant.
In Ms Piggott's opinion, the appellant presented as someone who lacked insight regarding the reasons relating to the removal of the children from her care. In her opinion, the appellant and second respondent presented as maintaining an extremely negative attitude towards the first respondent. Further, both parties appeared to place sole responsibility for the removal of the children on the first respondent as opposed to their own behaviours: exhibit L, 17.
Ms Piggott stated that both the appellant and the second respondent had failed to reflect upon their own parenting abilities or attitudes, and did not demonstrate awareness or sensitivity to the children's emotional and developmental needs: exhibit L, 18. In her opinion, both presented with a limited view of what constituted 'good parenting', and neither presented to her as willing to reflect on their parenting practices with a view to identifying and rectifying them: exhibit L, 19.
Based on her observations and the material with which she had been provided, it was Ms Piggott's opinion that the children perceived their relationship with the appellant and the second respondent in a far less significant manner than the appellant and the second respondent presented.
Ms Piggott had significant reservations about the ability of the appellant and the second respondent to provide for the needs of the children. She identified the following things as 'necessary in order … to adequately provide for the children':
•ensuring that the children are not at risk nor experience any form of physical, emotional, psychological, neglectful or sexual abuse;
•ensuring that the children's developmental needs in all areas (physical, intellectual/learning, social, temperament, bond/relationships with caregivers) are fulfilled;
• maintaining an ability to place the children's needs before that of their own when necessary;
•an ability to maintain their own physical and emotional health so their parenting/carer role can be maintained effectively;
•demonstrate empathy and an understanding of the children's difficulties and issues.
•ensuring the children do not engage in any contact with perceived risky individuals;
•a preparedness to seek and accept support of others, including professionals, in relation to parenting the children and meeting the needs of the children; and
•providing the children with a stable, safe and predictable living environment and consistency of care: exhibit L, 33.
Ms Piggott, having identified these factors, went on:
I am not confident that the parents can meet these. It is my opinion that both parents require substantial therapeutic intervention over a considerable duration of time before they can even begin to act in the best interests of the children. (emphasis added)
In Ms Piggott's opinion, given the substantial 'work' the appellant and the second respondent would have to do in order to meet the children's needs, any care order made by the court would need to be lengthy: exhibit L, 34. She recommended that the children reside within the care of the first respondent until the appellant and the second respondent demonstrate significant and meaningful changes: exhibit L, 34.
In Ms Piggott's opinion, the appellant presented with three primary areas of therapeutic need:
(a)resolution of her childhood/adolescent issues;
(b)moderation of the dysfunctional elements of her personality structure; and
(c)moderation of her understanding of appropriateness regarding sexual matters.
Ms Piggott recommended that the appellant embark upon therapy to deal with these issues. In doing so, she noted that those relevant to personality function may be significantly harder to change or adapt as they are likely to have been integrated into the appellant's psyche: exhibit L, 37.
Under the heading in the report, 'Summary and Recommendations', Ms Piggott said this about the appellant:
[The appellant] appears to maintain an inability to consider many matters including those relevant to the children, outside of her own experiences or perspective. Alongside this, [the appellant] is likely to have experienced a traumatic childhood which in combination with her personality formation significantly impacts upon her ability to put the needs of her children before that of her own, to remain protective of her children, to meet the children's needs (physical, emotional, social, psychological, developmental) and to function as an appropriate and effective parent. It is with these in mind that [the appellant] is likely to require substantial long‑term therapeutic support/intervention before she is able to even begin to parent her children.
In reference to the children, I have significant concerns regarding the various problems the children, individually and in combination, present … some of which include sexualised behaviours, emotional and behavioural difficulties.
In short, it is essential that all three of the children within this matter are within a safe, stable, protective environment receiving the appropriate care and nurturance support they require and as having all of their individual childhood needs appropriately met. I would be significantly concerned if they were placed in the care of their parents at this point of time: exhibit L, 39.
Counsel for the appellant cross‑examined Ms Piggott briefly. She agreed that she had not seen the appellant, the second respondent and the children since she wrote the report, but she said that she believed that her opinions were still valid, subject to any additional information about events which may have occurred since the date of the report: 22 March 2011, ts 61.
The appellant's counsel did not suggest any further event which had occurred that may have caused Ms Piggott to change her opinions, nor did he challenge her opinions. Cross‑examination on behalf of the children's separate representative did not challenge Ms Piggott's opinions, but rather confirmed them.
Evidence of Dr Dulcie Veltman
Dr Veltman is a consultant psychiatrist who works in the area of traumatology, that is, she works with the adult survivors of childhood abuse: 22 March 2011, ts 43. She does not work with children and she has no expertise in the area of child welfare: 22 March 2011, ts 52.
The appellant first consulted Dr Veltman on 1 October 2010. The purpose of the consultation and subsequent consultations was therapeutic, not forensic.
Dr Veltman saw the appellant on 12 occasions between 1 October 2010 and 16 December 2010. Her report, dated 10 January 2011, was tendered in evidence: exhibit 1. Based on the history provided by the appellant, Dr Veltman diagnosed the appellant as suffering from complex post‑traumatic stress related to neglect and abuse which occurred throughout her childhood and teenage years: exhibit 1, 1.
The criteria for this disorder include emotional disturbances which cause clinically significant distress or impairment in social, occupational or other important areas of functioning: Criteria for Post‑traumatic Stress Disorder, exhibit 1.
Dr Veltman continued to consult with the appellant after 10 January 2011. Dr Veltman made the point, both in the report and in her evidence, that she had not been able to address the problems of childhood abuse in therapy because of the proceedings before the Children's Court: exhibit 1, 3 ‑ 6 and 22 March 2011, ts 34 ‑ 35.
Dr Veltman expressed the opinion that the appellant required at least 12 months of therapy in order to address the issues relating to her childhood trauma: 22 March 2011, ts 36.
In her report, Dr Veltman said that she had no evidence to suggest that the appellant was unable to care for her children. She said that the appellant did not have any form of psychotic illness. She made it clear that her commitment was to the appellant personally and that she had no ability to judge the needs of the children. Dr Veltman said that the appellant's prognosis was good, 'providing she receives the correct psychiatric assistance': exhibit 1, 6.
In cross‑examination, counsel for the first respondent asked Dr Veltman how frequently the appellant would need to participate in a therapeutic programme to gain benefit. Dr Veltman said that, if possible, twice a week, but that depended upon the appellant's ability to see her and whether Dr Veltman was available, in the light of her waiting list: 22 March 2011, ts 44 ‑ 45.
Dr Veltman was provided with a copy of Ms Piggott's report shortly before she (Dr Veltman) gave evidence. She accepted that the time taken by Ms Piggott to see and observe the appellant, the second respondent and the children was sufficient to enable Ms Piggott to analyse the difficulties confronting the appellant and the second respondent: 22 March 2011, ts 49.
In cross‑examination by the separate representative, Dr Veltman described the potential impact upon children who are neglected as 'terrible' when they become adults: 22 March 2011, ts 53 ‑ 54.
Evidence of the appellant
The appellant swore an affidavit dated 21 December 2010, which was tendered in evidence: exhibit 12.
The affidavit makes numerous criticisms of the first respondent's treatment of herself and the children. She alleged that the department had obstructed reunification unreasonably, restricted her contact and failed to keep her informed of matters relevant to the welfare of her children.
Among the allegations that she made against the department were that C was not properly dressed for a contact visit on 14 December 2010 and that the department had not properly investigated allegations of sexual abuse made by L and C.
In respect to the s 143 proposal filed on 21 September 2010, the appellant alleged that parts of it were unreasonable and that she had, in substance, complied with those parts she considered reasonable.
In examination‑in‑chief, she said that she had complied with those parts of the first s 143 proposal which required her to notify the department of various events, by obtaining, on her own, psychiatric counseling and by obeying the department's contact requirements: 25 March 2011, ts 4 ‑ 6.
She described her finances as stable, and she outlined the several online study courses that she had undertaken: 25 March 2011, ts 7.
She acknowledged that she required counselling for the traumatic events of her childhood. She said she realised that she had a minimum of 12 months therapy ahead of her. She said that she would keep going until Dr Veltman gave her 'clearance that I no longer require it': 25 March 2011, ts 12.
She said that her online courses had given her 'a lot of insight as to different aspects on which way to look at situations with children': 25 March 2011, ts 12.
In the event that the children were in her care, she said that :
(a)she wanted the children to remain in contact with their carers: ts 12;
(b)she wanted L to continue to see Ms Philp 'no matter what the cost': ts 13;
(c)she planned for the children to live at her then current residence, in Parklands, where their physical needs had been 'set up': ts 15. She noted that each child would have their own room and wardrobe: ts 16;
(d)the children would attend local primary schools;
(e)she would cooperate with the department to meet its concerns 'providing they were realistic': ts 18.
In cross‑examination by counsel for the first respondent and the separate representative, the appellant's credibility of some aspects of the account that she had given about her childhood and adolescence was challenged. In particular, it was put to her that her account of giving birth to T, and her evidence in respect of that child, was false. The appellant maintained that it was true.
She accepted that her relationship with the second respondent had been marked by episodes of violence, and that at the time of the hearing, the appellant had a violence restraining order in place against him: 25 March 2011, ts 36. The appellant said that the children were never at home when she and the second respondent fought.
The appellant was cross‑examined at some length concerning her attitude to the department. The appellant said that she would do whatever the department required 'providing it is within reason': 25 March 2011, ts 44, 47.
When asked what she meant by this, she said that she would do whatever was required, provided that her lawyer was notified, in order to make sure that what she was required to do was 'above board': 25 March 2011, ts 47.
Under cross‑examination by the third respondent, the appellant admitted lying in her evidence before Magistrate Hogan when she told him that at the time of those proceedings she was engaged to a man named JH: 25 March 2011, ts 49.
When the appellant was asked to summarise how things had changed for her in the period since Magistrate Hogan's decision, she said:
I've managed to pull myself out of a depression hole and be cleared from all medication: 25 March 2011, ts 73.
She went on to say:
I was accused of physical, emotional, sexual abuse and neglect on the children. So far that's all that they've had since they've been in the care of the department. I have picked myself up as - the depression. Knowing that I only had the 6 months to do whatever I could to improve myself. So I've done that with my studies. I've got off my medication. I've continued with counselling and like I said I plan on continuing with counselling. I'm enjoying it. I want to do - like what's in the best interests of the children as well. That's why I did state to Ms Byrd that I wanted the kids to remain in regular contact with the carers and to continue doing counselling. Doing the courses has given me a broader range of different aspects to look at: 25 March 2011, ts 74.
Reasons of Magistrate Schwass
Magistrate Schwass expressly accepted the evidence called on behalf of the first respondent, including the evidence of Ms Byrd, Ms Piggott and Ms Philp: [41], [56] and [59].
As to the evidence of Dr Veltman, his Honour said:
Dr Veltman's evidence does not assist the respondent mother in any way. Her evidence confirms the evidence of Ms Byrd that nothing has changed since the last hearing. The respondent mother is yet to address the issues arising from her childhood.
Whether she can or does remains to be seen. Dr Veltman has not and cannot provide an opinion as to the best interests of the children. She is not an expert on child protection and does not have all of the relevant information: [68], [69].
His Honour found that the evidence contained in the appellant's affidavit sworn 21 December 2010 comprised 'mostly unfounded criticisms and complaints about the department and Mr Byrd': [70].
He did not accept the appellant's evidence that she had given birth to T: [72]. Nor did he accept that L's behavioural problems stemmed from discovering the body of SP: [74].
Magistrate Schwass found that little weight could be given to the appellant's good intentions as to the welfare of her children in light of her history: [76].
His Honour stated that the focus of his decision was what was in the best interests of the children. He expressed that proposition in this way:
This case is not about the failure of the Department to comply with the order of this Court made 16 September 2010 that the children be reunited with the respondent mother within 6 months. This case is not about giving the respondent mother another chance. This case is about what is in the best interests of the children. That is what the law clearly is. While the first principle (s 9(a)) in the Act is that a child should be cared for by their parents the first matter that the Court must take into account when determining the best interests of the child (s 8(1)(a)) is the need to protect the child from harm: [77].
His Honour then considered each of the matters that must be taken into account under s 8(1) of the Act, as follows:
(a) the need to protect the child from harm;
L has post-traumatic stress disorder from the time she was in the care of the respondent mother. I am satisfied the children would be at risk of harm if in the care of the respondent mother.
(b)the capacity of the child's parents to protect the child from harm;
The respondent mother has demonstrated a complete inability to protect the children from harm and is contemptuous of the Department's concerns for the safety of the children, in particular from her series of boyfriends/partners/fiancés.
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
The respondent mother does not have the capacity to provide for the children's needs. [The second respondent] may have the capacity. He continues to demonstrate a commitment to S, she enjoys contact with him and he readily acknowledges he is not in a position to care for her at the moment and he intends to engage with the Department.
(d)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
The report of Ms Piggott of 19 January 2010 squarely addresses this consideration and is unequivocal [in] recommending the children remain where they are until the respondents demonstrate significant and meaningful changes.
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
The respondent mother has continually put her needs and wishes above the children's needs and has abrogated her parental responsibility. The previous comments in respect of [the second respondent] apply.
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
L has expressed her views to her lawyer (EXHIBIT 4) and psychologist (EXHIBIT N). L has a qualified wish to be with her mother, that is her mother come and live with her at the carer's or the respondent mother does not have any boyfriends. L's views are poignant.
(g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i)the child's parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child's life;
The evidence of Ms Piggott makes it clear that a return of the children to the care of the respondent mother could be disastrous. The children have been in their current placement since December 2008.
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
While in the care of the CEO appropriate contact has been maintained consistent with the best interests of the children.
(i)the child's age, maturity, sex, sexuality, background and language;
The children are of a vulnerable age and L has been sexually abused. The respondent mother appears indifferent to what has happened to L and is not protective of the children.
(j)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
While in the care of the CEO the children's identity has been maintained and I am satisfied will continue to be.
(k)the child's physical, emotional, intellectual, spiritual, developmental and educational needs;
The children's needs are being well met. The respondent mother'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. Her rhetoric does not match the reality of her acts and omissions.
(l)any other relevant characteristics of the child;
Not relevant.
(m)the likely effect on the child of any change in the child's circumstances;
All the evidence and particularly the evidence of Ms Piggott, satisfies me that the likely effect on the children returning to the care of the respondent mother would be detrimental. The children are settled where they have been for over two years. The disruption to their wellbeing, which is more apparent in L being the oldest, comes from any contact with the respondent mother: [78]
At [81] of his reasons, Magistrate Schwass made further findings of fact, as follows:
I make the following findings of fact on the balance of probability:
1.The respondent mother is inherently dishonest. This in itself is of little consequence. However, in terms of her being able to successfully engage with the Department and any therapist now or in the future it is significant.
2.The respondent mother did not give birth to 'T' in April 1996 as she alleges. This is a matter of some concern as to the mental health of the respondent mother. I rely upon the evidence of Ms Piggott in this regard.
3.The respondent mother cannot manage her finances. The evidence speaks for itself.
4.The respondent mother has a dubious lifestyle. The evidence speaks for itself.
5.The children and particularly L, are happier when they do not have contact with the respondent mother. I rely in particular upon the evidence of Ms Philp.
6.There is no evidence the respondent mother can or will make any significant change. There is no credible evidence to indicate any significant change will occur within 2 years notwithstanding the evidence of Dr Veltman.
Magistrate Schwass decided to make a protection order (until 18) as opposed to a protection order (time‑limited) because, in his opinion, the appellant had shown, based on the evidence of Ms Byrd and Ms Piggott, little or no capacity to change, and that the necessary changes in the appellant were not going to occur within a period of 2 years: [92].
Magistrate Schwass said that he was satisfied that it was in the best interests of the children to support the current placements in which the children were living, and that any attempt at reunification should not occur, at least until 'the respondents have clearly demonstrated significant changes' in their lives: [94].
Consideration of the grounds of appeal
Ground 1
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.
A convenient statement of the doctrine of res judicata was made by Fullagar J in his dissenting judgment in Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466 in which he said:
The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.
The doctrine is a broad rule of public policy designed to achieve finality of litigation, prevent the unfairness of a winning party being 'harassed' twice for the same cause and the 'scandal' of conflicting judgments: see Rojanasaroj v Rachan [No 2] [2011] WASC 271 [35].
The fundamental difficulty for the appellant in respect of this ground of appeal is that the doctrine of res judicata does not apply to child welfare proceedings because the welfare of the child is the paramount consideration: Ex parte Semple v Heijer (Unreported, WASCA; Library No 920698, 22 December 1992) 23 ‑ 24 (Malcolm CJ, Nicholson & Ipp JJ agreeing).
Although res judicata does not apply, this does not mean that parties are at liberty to continually relitigate such proceedings based on the same, or substantially the same, material. Where a court settles the question of parental responsibility, it will not usually be in the interests of the child for those proceedings to be relitigated. To do so would be to needlessly introduce into the life of the children, uncertainty and instability. Proceedings which in effect reopen the question of parental responsibility require 'material changes in circumstances' to be established: see In the Marriage of Houston v Sedorkin (1979) FLC 90‑699 at 78,727 ‑ 78,728 and In the Marriage of Rice v Asplund (1975) 6 Fam LR 570, 572.
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.
Turning to this case, 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 first respondent.
Ground 1 has not been made out.
Ground 2
The factual proposition upon which ground 2 is based is that the first respondent failed to take any active steps to bring about the reunification envisaged by Magistrate Hogan. In her submissions the appellant went further and alleged that the department had ignored Magistrate Hogan's order and in effect, had never intended to comply with it.
The proposition which underlies ground 2, cannot be sustained. Magistrate Schwass made no finding that the first respondent 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 first respondent 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 first respondent 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.
Ground 2 has not been made out.
Ground 3
As expressed, this ground of appeal alleges that Magistrate Schwass 'did not give any credence' to the appellant seeking out and commencing treatment with Dr Veltman. In her written submissions, a rather different point was made. She alleged that Dr Veltman's evidence was that the appellant 'did not suffer from any major psychiatric disorder that would impede reunification', and this should have led to orders 'in line with [those] of [Magistrate Hogan]'.
As I understand it, the point raised in the ground of appeal is that the appellant, and not the first respondent, had arranged the counselling foreshadowed by Magistrate Hogan and this showed the appellant's genuine desire to work towards reunification and reflected poorly on the first respondent's attitude towards his Honour's order.
Magistrate Schwass referred in his reasons to portions of Ms Byrd's affidavit relating to Dr Veltman. Ms Byrd stated that the appellant refused to sign a consent form allowing the first respondent to 'speak and collaborate' with Dr Veltman. As a result, Ms Byrd said 'it is impossible to determine whether current treatment is addressing child protection and preventing concerns'.
In light of Magistrate Schwass' acceptance of Ms Byrd's evidence, it was impossible for his Honour to have sensibly seen the appellant's actions as assisting her case in any material way.
The point raised in the appellant's written submissions has no substance. Dr Veltman did not say that the appellant 'did not suffer from any major psychiatric disorder'. Dr Veltman said that the appellant did not have 'any form of psychotic illness', but she did have a complex post‑traumatic stress disorder: exhibit 1. It is clear from Dr Veltman's evidence that the diagnosis of this disorder is serious and requires lengthy and regular treatment.
There is no merit to ground 3.
Ground 4
The appellant argues that Magistrate Schwass gave 'undue weight' to the evidence of Ms Piggott and that he disregarded the fact that Ms Piggott had not seen the children or the appellant since her report dated 19 January 2010.
An allegation that 'undue weight' was given to a relevant consideration does not usually give rise to an appealable error: Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614. It is clear that Ms Piggot's report was relevant to the discretion his Honour had to exercise. Questions of its weight were for him.
His Honour took into account that Ms Piggot 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.
Ground 4 has not been made out.
Other matters
In her oral submissions before me, the appellant made a number of statements from the bar table in which he 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.
Conclusion
None of the appellant's grounds of appeal have been made out. I would not give leave to appeal in relation to any of them. The appeal must be dismissed.
Orders
1.Leave to appeal is refused on all grounds of appeal.
2.The appeal is dismissed.
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