Pacy v CEO Department for Child Protection - [2008] WASC 257

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PACY -v- CEO DEPARTMENT FOR CHILD PROTECTION [2008] WASC 257

CORAM: JOHNSON J

HEARD: 23 JUNE 2008

DELIVERED : 7 NOVEMBER 2008

FILE NO/S: SJA 1032 of 2008

BETWEEN: JOHN PACY
Appellant
AND
CEO DEPARTMENT FOR CHILD PROTECTION
First Respondent
NATALIE BENDSTEN
Second Respondent
JIMMY RAFFERTY
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S VOSE
File No  :CC 129 of 2008, CC 130 of 2008, CC 131 of 2008

Catchwords:

Application for court ordered expert report - Role of children's representative - Changes to protection proceeding - Whether inquisitorial proceeding

Legislation:

Child Welfare Act 1947 (WA)
Children's Court of Western Australia Act 1988 (WA)
Children & Community Services Act 2004 (WA) s 139
Children & Community Services Regulations 2006 (WA) reg 20(1)
Criminal Appeals Act 2004 (WA)
Equal Opportunity Act 1984 (WA)
Family Law Act 1974 (Cth)
Family Law Rules 2004 (Cth)
Interpretation Act 1984 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal granted and appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr S J Jones
First Respondent           :     Mr I A Allen
Second Respondent       :     No appearance
Third Respondent         :     No appearance

Solicitors:

Appellant:     Pacy Solicitors
First Respondent           :     Department for Child Protection
Second Respondent       :     No appearance
Third Respondent         :     No appearance

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

Hinton v Mill (1991) 57 SASR 97
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Ruffles v Chilman (1997) 17 WAR 1
Webb v The Queen (1994) 181 CLR 41

JOHNSON J:

Introduction

This is an appeal from a decision of a Children's Court magistrate made on 20 March 2008 in the course of a protection application made by the first respondent, the Department for Child Protection (the Department) under the Children and Community Services Act 2004 (WA) (the CCS Act). The magistrate refused the application of the appellant, a children’s representative, for an order under s 139 of the CCS Act for a report on the wellbeing of the represented children.
The single ground of appeal is that the learned magistrate pre‑judged the application of the children’s representative and did not bring an impartial and unprejudiced mind to the determination of the application. Should the appellant be unsuccessful in establishing that the magistrate pre‑judged the application, there is no ground of appeal alleging that the magistrate erred in refusing the application. However, at the hearing of the application both parties addressed the merits of the application and both parties pressed the view that the order should have been made. Involved in that submission was a discussion about the circumstances in which s 139 of the CCS Act should be utilised.
Further, in pressing the submission, the parties maintained that the change in the relevant legislation has resulted in a change in the nature of protection proceedings, namely, that such proceedings are now inquisitorial in nature. It was submitted that this factor would cast a greater responsibility on the court to make orders of the type sought. Consequently, irrespective of the conclusion I reach on the ground of appeal, I propose to address the merits of the application as well as the scope and purpose of s 139 of the CCS Act.

Preliminary Issue

When the application for leave to appeal was heard, an issue arose as to the jurisdiction of this court to hear the appeal. In order to expedite the matter the decision was made to list the application for leave and the appeal to be heard together so that the issue of jurisdiction could be addressed at the hearing.
Section 7(1) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. Subsection (4) provides that, except as provided by the section, no appeal lies against a decision of a court of summary jurisdiction.
Section 6 of the Criminal Appeals Act defines 'decision' of a court of summary jurisdiction in these terms:
(a)a judgment entered under the Criminal Procedure Act 2004 s 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 s 151;...
The decision made in this case does not appear to fall within any of these definitions. However, s 7(5) of the Criminal Appeals Act states that s 7(1), s 7(2) and s 7(4) are subject to any other written law and in particular to the Children's Court of Western Australia Act pt 5 (the Children's Court Act).
Section 42(1) of the Children’s Court Act provides:
Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the Children and Community Services Act 2004 the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction, by ‑
(a)the CEO as defined in section 3 of the Children and Community Services Act 2004;
(b)the parent or guardian of the child in relation to whom the application was made;
(c)the child in relation to whom the application was made; or
(d)the person by whom the application was made.
Clearly, the combined effect of the relevant provisions of the Criminal Appeals Act and the Children's Court Act is that any finding, order, or other decision on the hearing of an application under pt 4 or pt 5 of the Children's Court Act may be appealed to a single judge of the Supreme Court under s 7 of the Criminal Appeals Act.
The power for the court to order an expert report is contained in s 139, which is in pt 5 of the CCS Act. In my opinion, the magistrate’s dismissal of the application was an 'order or other decision' within the meaning of s 42 of the Children’s Court Act and may properly be the subject of an appeal under the Criminal Appeals Act to a single judge of this court.

Facts

The second respondent has five children. The third respondent is the biological father of the three youngest children and is the stepfather of the older children, LB and WB.
The third respondent has been charged with indecently dealing with the child LB. He has pleaded not guilty to those charges. The Department then removed LB and WB from the care of the second and third respondents. There are now Family Court proceedings on foot concerning these two children.
By applications filed on the 31 December 2007, the CEO of the Department applied under s 54 of the CCS Act for protection orders (time‑limited) with respect to the three youngest children, AR, TR and LR. The duration of the orders sought was two years.
On 31 January 2008, the Children’s Court appointed the appellant as the children’s representative. The appellant applied under s 139 of the CCS Act for the court to order an expert report from a nominated expert. The application set out terms of inquiry for the report, including:
The relationship of the children AR, TR and LR with:
(a)the first respondent;
(b)the second respondent;
(c)their half‑siblings LB and WB; and
(d)any other significant person.
The relationship between the first and second respondents.
(If the expert considers the children of sufficient age and maturity) the perceptions of the children as to:
(a)their relationships with the respondents, and their half‑siblings LB and WB;
(b)remaining the subject of a protections order;
(c)with whom they would like to live; and
(d)what contact they would like to have with the respondents or other relevant persons.
Whether there is, or has been, any priming, influencing or manipulation of the children with respect to the children’s views and responses.
Each of the respondents’ respective capacities to recognise and provide adequately for the emotional, physical and intellectual needs of the children.
Whether any of the children are at risk of any form of abuse, harm or neglect from:
(a)Either of the respondents; or
(b)Any other person connected with the family.
The effect of separating the children from the respondents and their half‑siblings.
Which of the respondents, if any, would be better suited to provide for the needs of the children.
The suitability and content of a protection order.
The suitability and content of counselling.
The application was filed with an affidavit in support sworn by the appellant. In that affidavit, the appellant deposed that the expert had indicated his preparedness to accept an appointment as expert in the matter. The appellant also expressed the view that it was necessary for an expert to be appointed. This was said to be because the court would not be in a position to properly assess what was in the best interests of the children, or be able to adequately determine whether the children were in need of protection and care, without the benefit of an expert report. Counsel for the first respondent supported the application.
At the conclusion of the hearing the application was refused.

Legal Principles

It is a fundamental rule of natural justice and an abiding value of our legal system that every adjudicator must be free from bias: Johnson v Johnson [2000] HCA 48; 201 CLR 488, 501 per Kirby J. Pre‑judgment is classified as a form of apprehended bias on the part of the judicial officer: Johnson v Johnson (495) per Kirby J. In Webb v The Queen (1994) 181 CLR 41, 47 Mason CJ and McHugh J identified, in the following terms, the test to be applied when dealing with allegations of actual or apprehended bias:
When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might pre-judge the case. [47]
The question to be asked has also been framed in terms of whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question: Johnson v Johnson (492).
In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Gaudron and McHugh JJ said:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker; what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. [100]
Consequently, it has been held that a judge or magistrate should not so conduct himself, either by words or actions during the course of a hearing, as to give rise to a reasonable suspicion that he might have a closed mind as to the issues in the case before having heard all the evidence: Hinton v Mill (1991) 57 SASR 97, 99; Ruffles v Chilman (1997) 17 WAR 1, 7.
However, the High Court has emphasised that judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment: Johnson v Johnson (493), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

Magistrate's reasons for decision

At the commencement of the application the magistrate made the following comment:
You are going to have [to] work very hard to convince me an expert is needed.
Counsel then referred to the fact that he was aware of comments the magistrate had recently made in relation to applications of this type. The magistrate then asked to read the terms of the order sought. The magistrate made the point that it was for the Department to prove its case and observed that the Department could call its own expert witness if it chose to and an independent expert paid for by the court would be duplication. Having noted that it was for the Department to prove its case, the magistrate then posited the following question:
…why should the court take over the funding of the department by getting experts to provide evidence that will either back up the department's case or not.
Further, when counsel for the respondent indicated that the respondent supported the application, the magistrate said this:
You would wouldn't you, because it will save you having to pay for an expert.
At the conclusion of the appellant's submissions, the magistrate indicated that he was not at all convinced that the order should be made. At the conclusion of the submissions of the first respondent, the magistrate stated that he just did not see the point in the application and that it seemed to him that it was a very clear cut case and it was up to the Department to prove it.

The ground of appeal

Counsel for the appellant submitted that the magistrate's statements gave rise to a reasonable apprehension that he had not brought an impartial and unprejudiced mind to the resolution of the application. In particular, it was submitted that the magistrate was sceptical about the application even before he had read it and, after expressing his preliminary view, he said nothing which made it clear that he retained an open mind. Support for the submission was said to be found in the magistrate’s observation, made essentially before hearing any submissions on the matter, that the involvement of an expert witness would not help.
If the remarks of the magistrate to which I have referred above were the only comments made by him with respect to the application, there would be some substance to the ground of appeal. It would appear that the magistrate had previously expressed a view that, as the Department had the responsibility for establishing that the children were in need of care and protection, it was for the Department to obtain any necessary expert evidence and not for the court to duplicate the expert evidence, or to save the Department the cost of paying for an expert witness. This view was repeated by the magistrate at the hearing of this application.
However, these were not the only matters addressed or taken into account by the magistrate in reaching his decision. There were submissions on the merits from both the appellant and the first respondent’s counsel, and observations by the magistrate as to the merits of the particular application. The magistrate also entertained submissions on the alleged change to the nature of child protection proceedings.
Counsel for the appellant outlined to the magistrate the factual circumstances relating to the application and submitted that, as neither of the parents were likely to concede that the children were in need of care and protection, there would be a trial and the court would need to make a determination about the need to protect the children and also about the parents' capacity to do harm to their children, both because of the third respondent's offending and the second respondent's refusal to accept that the third respondent had committed offences against his stepdaughter. Counsel further submitted that, because the children were of tender years, neither a lawyer nor a magistrate would be able to make an assessment about the level or nature of the risk that the third respondent poses to the children.
The magistrate did not accept that proposition. He described the issue for resolution as 'fairly simple', involving a finding as to whether the sexual abuse occurred, a consideration of the second respondent's attitude and a determination of whether she would take any necessary steps to protect her children from the third respondent. Without necessarily agreeing with the assertion as to the simplicity of the issue, in my view, the resolution of the questions posed by counsel in his submission would not necessarily require expert evidence. A determination of the level or nature of a risk of the relevant type does not necessarily require input from the children. More usually it is a matter of determining the likely conduct of the parents.
Having expressed the view that it would be necessary to work hard to convince him that an expert was needed, the magistrate immediately and properly took time to read the terms of the order sought and inquired as to the age of the children. The magistrate indicated that he was not convinced by the nature of the orders sought that an expert would be of assistance. That statement was made after the magistrate read the terms of the order sought and was made with knowledge of the type of application in relation to which the report was required. Taken in isolation, it could reasonably be understood as no more than a preliminary observation based on the magistrate's appreciation of the content of the report and the nature of the application.
Counsel then explained the factual circumstances and emphasised that there would necessarily be a trial and the need for the court to make a determination about the protection of the children. The magistrate identified the issues which would need to be established at trial. There was a brief discussion between the magistrate and counsel as to whether it would be necessary to adduce evidence of the relationship between the children and the second and third respondents.
Counsel submitted on the appeal that, given the possibility that the parents would resume parental responsibility at some point, because of the finite period of the order sought, the relevant inquiry was a much wider one than the magistrate acknowledged. I accept the submission that the relationship between the children and their parents would be an issue relevant to the application for a time-limited protection order. However, I do not consider that it is an essential issue. In the circumstances of the particular application, the risk of sexual abuse alone, if established, and the second respondent’s refusal to accept the existence of such a risk, would make it necessary to protect the children from the third respondent, irrespective of the current quality of the relationship between them and irrespective of the quality of the relationship between the children and the second respondent. In the absence of allegations other than those of sexual abuse, there is unlikely to be significant issues relating to the relationship between the children and the parents.
The magistrate also expressed the view that it was for the Department to establish that the children were at risk and in need of care and protection and there was no reason why the court should 'take over the funding of the Department by getting experts to provide evidence that will either back up the Department's case or not'. In response, counsel submitted that the change in the legislation obliged the court to avail itself of expert evidence. That proposition was not pressed on appeal and, in my view, an analysis of the extrinsic materials, referred to hereunder, confirms the discretionary nature of the power. Indeed, that conclusion is, in my view, evident from a consideration of the precise wording of the provision which is in these terms:
Court may require report
(1)The Court may at any time in the course of protection proceedings require a person to give the Court a report on any matter relevant to the wellbeing of the child.
(2)The person referred to in subsection (1) is to be a person appointed by the Court in accordance with the regulations.
(3)The report must be in writing unless the Court otherwise directs.
(4)The Court may specify the particular issues that the report must address but this subsection does not limit the issues that may be addressed in the report.
(5)A report is admissible as evidence in protection proceedings.
(6)The Court may give such weight as it thinks fit to the content of a report admitted under subsection (5).
(7)The regulations may ‑
(a)provide for and in relation to the appointment of persons for the purposes of this section;
(b)provide for the remuneration and allowances payable to such persons; and
(c)specify who is liable to pay the costs of a report under this section.

In the Explanatory Memorandum to the Children and Community Development Bill (WA) (the Explanatory Memorandum) the meaning of s 139 is explained in the following terms:
The ordinary meaning of s 139 is that the court has a wide discretion to order a report. The court may provide terms of reference. The expert has a discretion to report more widely than any terms of reference, and the court again has a discretion as to how much weight to give a report.
In my opinion, the power conferred under s 139 is a broad discretionary power and there is no basis to suggest that the exercise of the power under s 139 of the CCS Act is mandatory.
At the hearing of the application the magistrate also made the following statement:
I'm not going to use the court's budget money on having an expert come along to prove the department's case or to disprove it.
It can be seen that the magistrate was concerned about the potential for the Department, which brings the proceedings, notwithstanding that it considers a report to be necessary, to simply rely on the court to order and meet the expense of the report. If that were to happen, the real effect of s 139 would be to transfer the cost of expert reports in child protection proceedings from the Department to the court. Section 139(7)(c) states that the regulations under the Act are to specify who is liable to pay the costs of a report under this section. Regulation 20(1) of the Children & Community Services Regulations 2006 (WA) provides that a party to protection proceedings is to pay the costs of a report given in those proceedings if the court so orders. No reference is made to reports obtained under s 139 of the CCS Act. The provision does not expressly limit the power to reports obtained by the parties. Neither is there anything in the Act or the regulations which, in my view, would operate to limit the scope of the provision. However, s 20(2) prevents the court from making an order under s 20(1) unless it is satisfied that there are exceptional reasons. Consequently, the magistrate was correct in his comment that, in cases where an expert report is required or desirable, an order under s 139 of the CCS Act would have the effect of shifting the costs of expert reports in child protection proceedings from the Department to the court. Therefore, in my view, the concern of the magistrate was a valid one and one which neither counsel properly addressed. I will return to this issue later in these reasons.
The magistrate also expressed the concern that, if the court ordered an expert report, the expert would be determining the issues to be determined by the court including the ultimate issue. Counsel for the appellant pointed out that the magistrate was assuming that the proceedings are entirely adversarial in nature and submitted that the change in legislation with respect to protection orders had changed the nature of the proceedings. Later in these reasons I will also return to this proposition.
With respect to the magistrate, I consider his concern to be misplaced. An expert is required to address the issues identified in his or her instructions; in this case the terms of the order. Even if the expert were to express an opinion as to the ultimate issue, the magistrate would not be bound by that opinion, irrespective of whether the expert was engaged by the court or the parties. Expert evidence is evidence designed to assist in the resolution of the issues before the court. It is evidence upon which a decision may be based rather than must be based. Section 139(6) expressly provides that the court may give such weight to a report as it thinks fit. Irrespective of the general principles of expert evidence, in the context of a report obtained under s 139 of the CCS Act, any suggestion that the court would be bound by the opinion of the expert conflicts with the express terms of the provision.
At another point during the hearing of the application, the magistrate made the observation that, because, as he had concluded, the particular protection application was a simple straightforward matter, he did not consider that an expert witness could add anything. In response, counsel for the appellant submitted that he would agree with the magistrate's view if the application were made under the Child Welfare Act 1947 (WA) (the CW Act) but the legislation now passed by parliament clearly anticipates that the parties would be able to ask the court to make orders of this type.
The justification for that proposition is not immediately apparent from the terms of the CCS Act. Section 137 does not explicitly provide a mechanism for parties to apply for the court to request a report.In the Second Reading Speech (Hansard, Tuesday, 4 May 2004 at 2087) of the Children and Community Development Bill (WA) (the Bill) the Minister merely states that the court will have the power to seek independent expert reports to assist with decision making. There is no reference to applications being made by the parties for the court to order reports. Similarly, there is nothing in the Explanatory Memorandum to suggest that the power of the court to order a report may be exercised on the application of a party to the proceeding.
In comparison, I note that a similar provision in the Family Law Rules 2004 (Cth) which allows for the court to order an expert report includes the words 'on the application of the parties or of its own motion': r 15.45 of the Family Law Rules. Clearly, this provision anticipates that a party may apply to the court to order a report. In my view, the absence of any reference to an application by a party weakens the submission that s 139 can be invoked by parties to any proceeding. However, in the CCH Family Law and Practice Commentary notes on s 62G of the Family Law Act 1975 (Cth) (Family Law Act) a similar provision to s 139 which provides in subsection (2) that the court may direct a family consultant to give the court a report, it is possible for a party to make a request to the court for a direction that a report be made.
In any event, the proposition that parliament intended parties to apply for orders under s 139 of the CCS Act was not an answer to the magistrate's concerns that, in view of the straightforward nature of the proceedings, an expert witness would not add anything to the evidence.
During discussion with counsel the magistrate expressed a concern that ordering a report had the potential to create conflict in the expert evidence. For myself, I can see no difficulty with that result. Courts commonly deal with inconsistent expert evidence and draw conclusions about which parts of the expert evidence to accept and which parts assist in determining the relevant issues.
However, the response of counsel for the appellant was that 'the whole thrust behind the legislation that provides for court experts is to avoid that issue'.
The magistrate did not accept that proposition and nor do I. The magistrate's rejection of the proposition was in the following terms:
It doesn't avoid it. It doesn't. If you have got duelling experts, the court is not going to say, 'We appointed Mr Watts, he's our man, we believe anything he says.' Once you have got to that then the court has virtually bound itself to the view of its own expert. The court certainly won't be doing that and all you do ‑ If you have got another expert doing in you end up with potentially a third opinion for the court to determine.
In its submissions on appeal, the appellant complains of that passage. The appellant contends that part of the learned magistrate's position included the view that 'the court would be virtually bound by the view of its own expert and that there would be apparent benefits to a multiplicity of expert opinions'.
This interpretation misreads the words of the learned magistrate. Rather, the magistrate was correctly observing that, the mere fact that the court paid for an expert to provide a report would not render that expert's opinion of any greater importance. In view of the nature and purpose of expert reports, reports ordered by the court would have no greater status than any other expert report. In theory, all experts are required to provide a report which contains the expert's independent opinion on the relevant matter. The fact that expert witnesses have on occasion been found to be partisan does not change the nature of reports required of experts. The court may conclude that there is a greater level of independence in an expert appointed by the court or that the conclusions expressed by the expert are more compelling, but whether that is the case will depend on the particular circumstances and will vary from case to case. In my view, there is no substance to the proposition that an expert report ordered by the court would have any different status from other expert reports and the magistrate did not suggest that it would.
On the hearing of the appeal, and in relation to the magistrate's comment that an independent expert report paid for by the court would be a duplication if the Department were to call its own expert, counsel argued that a court ordered report had a number of advantages. It was said that parents whose children have been apprehended by the Department are often highly distrustful and, hence, extremely unlikely to participate in interviews with any expert engaged by the Department or to accept the views of that expert. It was further said that parents usually regard children's representatives as much more independent, are more likely to participate in an expert review arranged by the children's representatives and thereafter to accept that expert's findings. Counsel also submitted that, armed with a specialist report, children's representatives are also much more likely to settle proceedings obviating the need for a trial.
The first observation to be made is that children's representatives, being aware of the independent nature of expert witnesses, should be equally as likely to settle proceedings if a specialist report is available, whether it be obtained by the Department or the court. The second observation is that this submission is based on unsubstantiated assertions as to the actual and likely conduct of parents in child protection proceedings. At the hearing of the appeal, counsel for the appellant acknowledged that there was no evidence to support these contentions. Further, any failure on the part of parents to cooperate would no doubt be taken into consideration by the court in making its determination. I would add that a failure on the part of the parents to accept the opinion of an expert would have no impact on the court's determination. The court is required to act in the best interests of the child irrespective of whether the parents accept the available expert evidence. In my view, even if there were some evidence to justify these propositions, they are not sufficiently cogent to justify the exercise of the power under s 139.
On appeal, counsel for the appellant made the submission that, given the children's ages, without arranging for the involvement and report of the expert witness, it is difficult to understand what function in the proceedings the appellant could discharge. In my view, a practitioner with no idea how to represent the interests of very young children, other than to ask the court to obtain an expert report, should not accept the role of children's representative. It is trite to observe that the responsibility of the children's representative is to act in the children's interests. Without in any way attempting to give an exhaustive account of the responsibilities of a children's representative, that role would involve ensuring that every action taken by either the parents or the Department with respect to the children is at all times in accordance with the law, that the evidence led at the hearing is relevant and admissible, that all available evidence pertinent to the children's interests is put before the court, that the court is aware of, and correctly understands, the legal principles to apply in determining the best interests of the children, and whether the order sought should be made. I do not accept that a children's representative has no useful role to play in protection proceedings other than to apply for court ordered expert reports. If that were the case, there would be no point in having children's representatives as the Department could as easily make the application in the event that parties can apply under s 139.
The submission made to the magistrate by counsel for the Department was that the purpose of the section was to assist the court to make a decision in relation to the wellbeing of the children. However, the magistrate's view was that the matters identified in the order as being necessary for the expert witness to address, would not, in fact, assist. There was some discussion on the merits of the respective positions. There was then further discussion as to whether the evidence of the expert appointed by the court would bind the court to which counsel for the Department correctly responded that it would not and was simply another part of the evidence. The magistrate then expressed his final view on the matter which was that the protection application was a very clear cut case and it was for the Department to prove the case. In expressing the view that the matter was a very clear cut case, I do not consider that the magistrate was there expressing a view as to the merits of the protection application but instead was referring to the nature of the case.
It can be seen from this analysis that, whilst the magistrate firmly expressed his views about the use of s 139 of the CCS Act, he also made himself aware of the precise terms of the order sought, was made aware of the facts of the protection application, listened to the submissions of both counsel as to the merits of the application, raised and debated issues such as the effect of a report obtained under s 139 of the CCS Act and considered counsel's responses.
It is apparent that the magistrate repeatedly expressed, in quite strong terms, his views on the use of s 139 of the CCS Act. It was important that he raised those views because it was necessary for the parties to have the opportunity to address them. Nevertheless, it is unwise for any judicial officer to state that it will be 'difficult' to persuade him or that counsel will have to 'work very hard' to convince him of the merit of the particular application. It is always preferable when a magistrate has an understanding of an issue relevant to the matter to be determined, to expressly indicate that the understanding is preliminary only and amenable to change. Whilst the magistrate gave no such indication, he did inform himself of all relevant factors, entertain the submissions of both parties and involve himself in discussions on the merits of those submissions. The magistrate's responses to the submissions were reasonable and not of such a nature to suggest that he was rejecting them out of hand. For these reasons I am not persuaded that pre‑judgment or a reasonable apprehension of pre‑judgment has been established.

The nature of proceedings under the Children and Community Services Act 2004 (WA)

Counsel for the Department has set out in the written submissions a brief summary of the change in the legislation, making submissions with respect to the differences between the terms of the CCS Act and the CW Act.
The relevant part of the CCS Act came into operation on 1 March 2006. Counsel submits that the CCS Act envisages that child protection proceedings are to be dealt with significantly differently to the way in which they were dealt with under the CW Act and that the Children's Court is to have a much greater role in decisions to be made in relation to the welfare and wellbeing of children.
Under the CW Act the only decisions that the court had to make in deciding a 'care and protection' application were whether to make a declaration that a child was in need of protection, whether to make an order that the child be committed to the care of the Department or placed under the control of the Department, and the duration of such order: s 30 CW Act. There was no scope for involvement of the court prior to a care and protection application being filed, only limited scope for the court to make interim orders (s 29(3aa)) and the court was not involved at all in decisions around whether 'wardship' orders were to be extended past their initial expiry date.
However, under the CCS Act the court may first be involved in the decision of whether the Department can have access to a child for the purposes of an investigation and then may be involved in whether a child is brought into 'provisional protection and care': s 33 and s 35. After a protection application is filed the court has a range of interim orders that it can made: s 133. It can order a pre‑hearing conference which can be presided over by a magistrate or a convenor, it can require a report to be provided and can regulate access to that report: s 136, s 139 and s 140 respectively. At the conclusion of the protection proceedings the court must consider the proposal of the CEO of the Department for the child and can then make one of four different types of protection orders listed in s 43, two of which, supervision and enduring parental responsibility orders, may include conditions: s 143. After a protection order has been made there may be further proceedings in relation to the following matters such as recovery of a child by the Department (s 85 and s 86), extension of an order (s 49 and s 56), variation, addition or substitution of conditions (s 51 and s 64), replacement of an order with another type of order (s 68), and revocation of an order (s 67).
The manner in which protection proceedings are to be conducted has also been affected by the change in legislation. The CCS Act provides, in s 145(1), that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit. Section 146(2) provides that in protection proceedings the court is not bound by the rules of evidence but may inform itself on any matter in any manner it considers appropriate.
Guidance is also provided by the CCS Act in relation to the decision making process. The CCS Act provides that when considering whether the children are in need of protection, the court must regard the best interests of the children as the paramount consideration: s 7 CCS Act. Section 8 of the CCS Act sets out the matters that must be taken into account in determining what is in a child's best interests. The child paramountcy principle was not included in the CW Act until 2002 and no provision equivalent or even similar to s 8 was included.
Although under the CCS Act the ultimate question to be determined by the court was differently worded ('in need of care and protection'), even under the CCS Act it is for the department to prove, on the balance of probabilities, that a child is in need of 'protection': s 44 CCS Act. The court is required to make protection orders only if it is satisfied that making the orders would be better for the children than making no orders at all: s 46 CCS Act.
As I have noted, at the hearing before the magistrate, counsel for the appellant submitted that, as a result of the changes in the legislation, protection proceedings were now inquisitorial. This submission, although at times expressed in slightly less categorical terms, was maintained on appeal where it was submitted that the purpose of the new Act was to make the proceedings more inquisitorial in nature.
That submission was supported by the Department. Counsel for the Department submitted that it was clear from the legislative changes that protection proceedings under the CCS Act are intended to be conducted substantially differently to how they had been conducted under the CCS Act, with much greater involvement of, and level of inquiry by, the court. Counsel added that, although under the CCS Act it is still necessary for the Department to prove, on the balance of probabilities, that a child is 'in need of protection', the proceedings should be conducted in a more inquisitorial manner, with the primary aim being to produce an outcome for a child which protects that child and which is in the child's best interests. I would add that, not only is it still necessary for the Department to prove that a child is in need of care and protection, the Department through the CEO remains a party to the proceedings as is the child, each parent of the child and any other person considered by the court to have a direct and significant interest in the wellbeing of the child: s 147 of the CCS Act.

In support of the submission that protection proceedings under the CCS Act are inquisitorial in nature, counsel for the Department relies on the combination of the greater role of the court under the CCS Act and the requirements that the proceedings be conducted with little formality, little legal technicality and without the necessity of applying the rules of evidence. Counsel for the appellant appears to rely simply on an assertion of legislative intention identified from the conferral of additional powers on the court and the nature of those powers.
Both parties rely on this interpretation as to the nature of protection proceedings under the CCS Act to support the submission that an order should have been made under s 139. In construing a provision such as s 139, a construction that would promote the purpose or object underlying the written law should be preferred: Interpretation Act 1984 (WA) s 18. If the proceedings are indeed inquisitorial in nature that would certainly increase the likelihood of orders being made under s 139 as it would be the responsibility of the court to ensure that adequate evidence was available at the hearing.
I have already identified the changes to protection proceedings provided for in the CCS Act on which the submission that the proceedings are inquisitorial is based. In order to identify the purpose behind the legislation it is also useful to refer to the preamble and any objects or principles identified in the Act. The preamble to the CCS Act states that it is an act to repeal and amend various pieces of legislation. It also states that it is an Act to confer functions in relation to the provisions of social services, the provisions of financial and other assistance, and other matters concerning the wellbeing of children, other individuals, families and communities. The only other statement of purpose is that it is an Act to make provisions about the protection and care of children and the employment of children. There is no reference to changing the nature of proceedings from adversarial to inquisitorial.
The objects of the CCS Act are identified in s 6 as follows:
(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; and
(e)to protect children from exploitation in employment.
Section 9 of the CCS Act identifies the guiding principles to be observed in the administration of the Act. None of the eight principles identified in s 9, of the objects set out in s 6, in any way address the procedure to be applied in hearing applications under the Act or relate to a change in the nature of proceedings. Indeed, nowhere in the Act is there any reference to protection proceedings being inquisitorial in nature or the nature of such proceedings having changed.
Extrinsic materials such as the Explanatory Memorandum and the content of the Second Reading Speech provide no support for the assertion that the provisions of the CCS Act have changed the nature of protection proceedings from adversarial to inquisitorial, or that the way in which proceedings are to be conducted is in a 'more inquisitorial manner'. They contain no express statement to the effect that, as a result of the amendments, child protection proceedings are now inquisitorial in nature. They are completely silent with respect to the nature of the proceedings or any change to the nature of the proceedings.
That part of the Explanatory Memorandum concerning pt 4 of the CCS Act, which deals with protection and care of children, is as follows:
…The powers in this Part include a general capacity for the CEO to safeguard children's wellbeing; investigation; application to the Court for protection orders; protection proceedings; arrangements for children in the CEO's care, and provisions for leaving care and offences.
Part 4 of the Bill substantially replaces Part IV ‑ Wards and children under Departmental control of the Child Welfare Act 1947. Since the enactment of the Child Welfare Act, 56 years ago, significant advances have been made in our understanding of the problem of child abuse and in the development of child protection practice.
Child protection practice is now recognised as being part of a continuum of service to children and families, from safeguarding and supporting wellbeing through to protection of children who have suffered, or are at risk of suffering, significant harm, and the provisions of alternative arrangements to parental care.
This legislative reform will reflect new research knowledge and practice developments, together with changing community expectations for inclusion, informed decision-making, procedural fairness and accountability.
Further, there is no comment with respect to the provisions in pt 4, which empower the court to make the various types of protection orders, which would indicate a change to the nature of the proceeding at which such orders are made.
Neither is there anything said in the Explanatory Memorandum with respect to pt 5 of the Act, which deals with protection proceedings, to indicate a change in the nature of the proceedings. If such a change were to be made, it could reasonably be expected to be contained in this part of the Act. Further, in relation to div 4 of pt 5, in which s 139 is found, the memorandum simply states that, in determining the best interests of a child, the legislation enables the court to ask for reports from court appointed professionals. Even div 6 of pt 5 which specifically deals with procedural matters relating to protection proceedings is silent on any change to the nature of the proceedings.
In the Second Reading Speech, the minister observed that Western Australia had been until that point the only State in Australia that had not introduced modern child protection legislation in recent years. It was said that the new legislation reflected current research, evidence and contemporary practice and the Bill would give clear direction for a model of best practice, with an emphasis on supporting family wellbeing and supporting the capacity of families to care safely for their children. The legislation is described as broad and as providing a new way of responding to the complex social issues that have emerged in recent decades. The minister further observed that the other imperative for the introduction of contemporary legislation was the need to update the legal processes to protect children from harm. Consequently the Bill included new grounds for statutory intervention as well as an expanded range of orders to protect children from harm.
With respect to protection applications, the minister made the following statement:
The Bill provides for the Children's Court to have discretion to order that a child be separately legally represented. If a separate representative is appointed for a child who is too young to give instructions, the separate representative must act in the best interest of the child. A flexible mechanism for alternative dispute resolution is provided for through pre‑hearing conferences and the court will have the power to seek independent expert reports to assist with decision making. Procedural court matters, including provisions about interim orders, are also described more clearly in the Bill to address some of the many inadequacies of the current Child Welfare Act. The court will not be able to make a protection order for a child without considering a proposal or report from the CEO outlining the proposed arrangements for the wellbeing of the child. These are all new features, they are not found in the current legislation.
At no stage does the minister indicate that the nature of protection proceedings has changed from adversarial to inquisitorial or quasi-inquisitorial. It is difficult to imagine that such a significant change to child protection proceedings would have been overlooked or omitted.
Consequently, not only is the Act itself silent on the alleged change but both the Explanatory Memorandum and the Second Reading Speech also fail to make any reference to it.
A consideration of similar powers available to the Family Court when dealing with the interests of children provides some assistance in determining whether the changes to the CCS Act, including the power of the court to order expert reports, has indeed effected the alleged change to the nature of the proceedings.
As I have noted, a similar power to request a report is contained in the Commonwealth Family Law Act. Section 62G applies if, in proceedings under the Family Law Act, the care, welfare and development of a child who is under 18 is relevant: s (1). The section provides that the court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable: s (2). The court may adjourn the proceedings if it thinks necessary until the report has been given to the court: s (3). For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate: s (5). Section 62G is silent on who is to meet the cost of the report.
The CCH Family Law and Practice Commentary [19-010] observes that it is possible for a party who has just commenced proceedings for parenting orders to make an immediate request to the court for a direction that a report under s 62G be obtained. However, it also states that it is not the practice of most Judges to order reports simply when requested to do so by the parties. The explanation provided is that the family and child counsellors and welfare officers in all registries are so heavily employed that judges are reluctant to give them additional duties without reason for doing so. It is therefore necessary that there would be some matter or issue which may possibly be illuminated or clarified by such a report. According to the commentary notes, the court's discretion to order a report or not appears to be extremely wide and ultimately no general rule as to when a report will be ordered and when one will not be ordered can be laid down. It is said that the general test is likely to be whether the particular judge before whom the matter is listed thinks that a report on any specific issues may assist him or her in the resolution of the dispute.
Rule 15.45 of the Family Law Rules empowers the court, on application or on its own initiative, to order that expert evidence be given by a single expert witness. However, the cost of such a report is met by the parties and not by the court.
The significant aspect of these powers of the Family Court is that they arise in the context of proceedings which remain adversarial, notwithstanding the conferral of such powers and the existence of wide powers to protect the interests of children.
Similarly, provisions relating to informality of proceedings and which state that the court is not bound by the rules of evidence commonly appeared in legislation creating the various tribunals which operated prior to the creation of the State Administrative Tribunal. Without exception, these tribunals conducted adversarial proceedings: see for example the Equal Opportunity Tribunal created under the Equal Opportunity Act1984 (WA) and the Town Planning Appeals Tribunal. Even the State Administrative Tribunal is not bound by the rules of evidence and yet its hearings are still adversarial in nature: s 32 of the State Administrative Tribunal Act2004 (WA).
It can be seen that there is no express support in the legislation, the Explanatory Memorandum or the Second Reading Speech for the proposition that the change in legislation has resulted in a change in the nature of child protection proceedings to an inquisitorial proceeding.
The adversarial nature of legal proceedings is one of the fundamentals of our justice system. An inquisitorial proceeding is vastly different in nature. In particular, in an inquisitorial proceeding, the court would be responsible for the investigation, the collecting of the evidence and the presentation of that evidence. In my view, a change from an adversarial to an inquisitorial proceeding is such a major change as to require it to be expressly and specifically identified.
I accept that the change in legislation confers on the court wider powers and a greater role in the decisions to be made in relation to the welfare and wellbeing of children. It is also apparent from the legislative changes that different procedures are now to be applied on protection proceedings. It is also clear from the Second Reading Speech that the rationale behind the changes is to provide a new way of responding to the complex social issues that have emerged since the CW Act was enacted. However, I believe there is no basis for the proposition that the changes include a change to the nature of protection proceedings or the way in which hearings are conducted. In my view, notwithstanding the court's increased powers and the different procedural requirements for a protection hearing, the proceedings remain adversarial in nature.
An analysis of the power contained in s 139, when read in the context of the Act, suggests that the legislative intention was to empower the court in acting in the best interests of the child to seek information beyond that which the parties provide and to allow the court a greater involvement in proceedings of this type than was previously the case. For example, in addition to the power under s 139 of the Act, s 134 allows the court, at any time in the course of protection proceedings, on its own initiative, to make an interim order with respect to the child or the parents. Such an order may relate to the placement of the child, to counselling for the child or the parents, or to allow or prohibit contact between the child and others.
However, for the reasons I have given, I consider that s 139 of the CCS Act is a means of providing assistance to the court in an adversarial process rather than evidence of a change in the nature and tenor of the process.

The merits of the application

Both parties relied on the change in the nature of the proceedings as a significant part of the submission that the order sought should have been made by the magistrate. As counsel for the Department submitted:
Given the inquisitorial nature of the proceedings and the need for the court to be informed, or to inform itself, about a wide range of matters relating to the best interests and safety of the subject children, it was necessary for the court … to give substantial consideration to the need for a report from a suitably qualified and experienced expert.
It is the Department which brings the application for a protection order and it is for the Department to establish, on the balance of probabilities, that the order should be made. In my opinion, in determining the evidence to be adduced in support of the application, the Department is required to consider whether an expert report should be obtained. If an expert report is considered necessary or appropriate, then it is for the Department to take steps to obtain such a report. In my view, it would not be appropriate for the Department to avoid its obligation to prove the allegation that a child is in need of protection by declining to obtain an expert report, otherwise considered necessary or appropriate, in the hope that the court will obtain and meet the cost of such a report under s 139 of the CCS Act, either on the application of another party to the proceeding or of its own motion.
The magistrate clearly considered that the matters identified in the order, were matters which fell to be established by the Department and that, if expert evidence on those matters was required, it would be for the Department to obtain a report. Counsel for the Department was silent on the issue of whether the Department had turned its mind to whether or not an expert report was required to establish the need for a protection order to be made.
I am also of the view that most of the matters raised by the magistrate were relevant inquiries into whether the court should obtain an expert report but no answer was provided to some matters and the responses provided with respect to others were far from compelling. In my view, the applicant is required to establish more than that an expert report would assist. The applicant must establish that, in all the circumstances, it is appropriate for the court to obtain the report.
The magistrate did not consider that the proceeding was sufficiently complex to require a court ordered expert report and also considered that many of the matters identified in the order were not essential to the resolution of the proceeding and some were not even relevant. I am not persuaded that the magistrate fell into error in reaching that conclusion. Further, given my finding that the proceedings are not inquisitorial, neither am I persuaded that the order sought should have been granted.
I would grant leave to appeal and dismiss the appeal.