PR v Chief Executive Officer of the Department of Child Protection

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PR -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION [2008] WASC 228

CORAM: JENKINS J

HEARD: 15 & 29 AUGUST 2008

DELIVERED : 29 AUGUST 2008

PUBLISHED : 30 OCTOBER 2008

FILE NO/S: SJA 1063 of 2008

BETWEEN: PR
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION
First Respondent
B (a child)
Second Respondent
LR
Third Respondent
DB
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S N VOSE
File No  :CC 963 of 2003

Catchwords:

Protection and care of children - Appeal - Parties to protection proceedings - Considerations relevant to the determination of the identity of parties to protection proceedings

Legislation:

Child Welfare Act 1947 (WA)
Children's Court of Western Australia Act 1988 (WA), s 42(1)
Children and Community Services Act 2004 (WA), s 7, s 8, s 31(1), s 56, s 90, s 147
Criminal Appeals Act 2004 (WA)

Result:

Appeal allowed
Decision of the magistrate is set aside
Order that the appellant is party to the protection application

Category: B

Representation:

Counsel:

Appellant:     Mr W L Meredith
First Respondent           :     Ms L A Eddy
Second Respondent      :     Ms R H Reader
Third Respondent          :     No appearance
Fourth Respondent        :     Mr J P S Gore

Solicitors:

Appellant:     Midland Legal Advocacy Service
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     Reader Lawyers and Mediators
Third Respondent          :     No appearance
Fourth Respondent        :     Jeffrey Paul S Gore

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

Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210
Hughes v Gales (1995) 14 WAR 434
State of Western Australia v JJS (a child) (2004) 145 A Crim R 403

JENKINS J: This is a an appeal from the decision of a magistrate sitting in the Children's Court of Western Australia at Perth on 27 June 2008. The appellant appeals against the magistrate's refusal to grant an order that she be joined as a party to protection proceedings relating to her grandson B, who was the subject of a protection application (until 18) which was then before the Magistrate (the protection application).
On 5 August 2008, McKechnie J granted an extension of time and leave to appeal on the grounds specified in the appeal notice. The grounds of appeal are not well expressed. In essence, they allege that the magistrate erred in law in the application of the Children and Community Services Act 2004 (WA) s 147(e) (the Act), when he failed to apply the statutory test for determining whether a person ought to be joined as a party to protection proceedings.
Secondly, it is alleged that the magistrate erred in law and fact because he failed to take into account, when determining the appellant's application to be joined as a party, that the appellant was not only a grandmother, but also had a 'direct and significant interest in the wellbeing' of her grandson, the subject of the protection application because she had custody of B's younger brother and had past overnight contact with B.
Lastly, it is alleged that the magistrate erred in fact and law in refusing to grant the appellant's application to be joined as a party to the protection application because if his Honour had applied the statutory test he would have permitted the appellant to be joined as a party.
Thus the appeal raises a number of discrete issues for my consideration. First, did the magistrate fail to apply the correct statutory test or criteria? Secondly, did the magistrate fail to take into account all the relevant facts in determining the appellant's application to be joined to the protection application? Lastly, given my conclusions on the first two issues, did the magistrate err in failing to permit the appellant to be joined as a party to the protection application and, if so, should I correct that error?
The acknowledged parties to the protection application have taken different positions in respect to this appeal. On a previous occasion I joined those parties to this appeal. The first respondent has filed submissions and made oral submissions consenting to the order sought on appeal. The second respondent, the child, is represented today by counsel. Ms Reader, who appears as B's representative, does not consent to nor oppose the appeal. The third respondent, who is the mother of B and the appellant's daughter, is represented by counsel. Her counsel was unable to appear today but she has provided a letter stating that the third respondent supports the appeal on the basis that she supports the appellant's wish to have the care of B. Finally, counsel for the fourth respondent, the father of B, on behalf of the fourth respondent, opposes the appeal but has not made any written nor makes any oral submissions in support of his opposition.
The appellant has filed an affidavit sworn 18 August 2008. Leave has been given to her to rely on that affidavit in this appeal. The relevant material in the affidavit relates to why she wishes to be made a party to the protection application. I do not intend to quote the whole of the affidavit. In summary, the appellant says that she and her husband have the capacity to look after B, both in terms of being able to provide an appropriate physical environment as well as being able to provide proper parenting to B.
The appellant also gives a history of her involvement in B's life. She states that she had significant contact with him prior to him being placed in the care of the first respondent. That occurred when B was three months old. She says at that time she advised the first respondent that she was prepared to be and, in fact, wanted to be B's carer, but that that request was denied. More importantly, she says that as the years have passed she has played a significant part in B's life. She says that she has had a lot of contact with him, including quite a lot of overnight contact.
She says that in the first three years of B's life she saw him weekly for around an hour, supervised, at the first respondent's office. She said that when B was three years old she commenced having unsupervised overnight care of B, fortnightly, on weekends. She says that this continued for three years up until a few months ago.
The appellant deposes that when B was three, his younger brother was born. The appellant says that the first respondent allowed her to care for B's younger brother, and she has continued to do so for the 22 months of his life.
The appellant deposes that because she cares for B's younger brother and has a relationship with both boys' mother, that is, her daughter, she can facilitate contact between the younger brother and B's mother. Similarly, if B is also present at her house she is able to facilitate contact between B and his mother and his younger brother. The appellant deposes that she wants to have the care, and I interpret that as being the full time care, of B. She says that she wishes to be joined as a party to these proceedings, by inference, to further that wish.
On 14 February 2008 the first respondent filed the protection application for an order that B continue in the care of the first respondent until he attains the age of 18 years, or that the court makes such a protection order as it sees fit, pursuant to the Act s 56(4).
B is now approximately six years of age. He has been in foster care since was approximately three months old. It appears that on 18 July 2003 the Children's Court made a care and protection order for 10 years, pursuant to the Child Welfare Act 1947 (WA) (the repealed Act).
The Act contains transitional provisions relating to orders made under the repealed Act. Schedule 1 cl 3 of the Act applies so that the order in respect to B made under the repealed Act has effect as if it were a protection order (time limited) made under the Act which had effect for a period of two years from the date of commencement of the Act.
It is common ground that the protection application was made because the two-year transitional period was coming to an end. The respondents' submissions states that that period expired on 29 February 2008, and that is not in dispute.
The protection application was mentioned in the Children's Court on 27 June 2008 before the magistrate. For convenience I will refer to the individual parties by their initials. B, LR, DB, and the first respondent were all represented by counsel. The magistrate had prior notice that the appellant was applying to be made a party to the protection application. The magistrate asked the appellant's counsel why the appellant's application to be joined as a party ought to be granted. Counsel submitted that the appellant's position was 'unusual' and 'exceptional'.
In support of those contentions he relied upon the following matters. First, given that the appellant had the care of B's younger brother with the approval of the first respondent, there was no reason why she should not also have the care of B, which was her wish; secondly, the appellant was B's maternal grandmother; thirdly, B had been spending time in the appellant's home for the past five years; fourthly, B's contact with his mother and brother would be facilitated by the appellant having B's full-time care and, lastly when the first respondent had initially taken B into care, the appellant had expressed a desire to take care of B. That request had been rejected, but should be reassessed as the appellant now has the care of B's younger brother.
From the commencement of counsel's submissions it was apparent the magistrate was not minded to make the order as sought. Before I canvass the reasons the magistrate gave for his view I will outline the attitude of the other parties to the protection application as they were advised to the magistrate at that time.
LR supported her mother's application because she wished her mother, that is the appellant, to have the care of B. DB was not present in the Children's Court at the time and his counsel could neither consent to nor object to the application. Counsel started to say something about having previous instructions to 'oppose any such application' but he was interrupted by the magistrate and it is not clear to me whether the application that counsel referred to was the appellant's application to become a party or any application by the appellant to have the care of B.
B's representative by implication supported the application, although I note that today, she says that she neither consents to nor opposes it. Ms Reader, who appeared as the child's representative, told the magistrate that the appellant's situation was 'different' because she was a grandparent as well as the carer of B's brother. She suggested that the joining of parties such as the appellant was contemplated by the Act. It is a shame that the comment did not prompt the magistrate to refer to the relevant provisions in the Act.
Counsel for the first respondent objected to the application on the basis that the protection application was a straightforward application to extend the care and protection order made under the repealed act. He said he did not understand that either parent wished to have the care of B. Counsel for the first respondent opined that the appellant's interests could be adequately expressed as a witness and as a supporter of LR's position.
The magistrate expressed various views throughout the exchange, primarily, with the appellant's counsel. For example, he pointed out that the appellant was not a parent of B, the carer of B or someone who had done anything to cause B to be in need of care. His Honour said that the appellant's interest was 'simply the same as any other grandparent'. His Honour said that the Act did not permit any grandparent to come to court and assert a right to have a say as to what happened to the relevant child. In particular, his Honour said:
The Court has the power to allow anybody to be joined as a party, but that doesn't necessarily relate to any familial or blood relationship, that relates to whether or not really those three factors that I outlined. If a person has had the care of the child, if the person is alleged to have contributed to the child being in need of care or if the person is a parent or a guardian or been a guardian, then certainly that would provide substantial grounds. None of those apply here [ts 4].
His Honour also said:
It's really, - I cannot see any basis whatsoever for grandmother to be joined as a party. I think it creates enormous complications which are not conceived by the legislation and really it completely derails the process here. I absolutely agree with Mr Bell that in terms of evidence and the grandmother's involvement in these proceedings, her appropriate involvement is as a witness and not only as a witness but - and with the need of a lawyer to be making submissions if she feels that's appropriate to the department in terms of issues such as contact, but there's just huge difficulties in joining her as a party [ts 9 ‑ 10].
Later, in refusing the application, his Honour said:
I am actually firmly of the view though that the application needs to be refused and so I will ‑ I do refuse that application. I might also point out, Mr Meredith, that if I then - and I have to say, I have been in this situation before. You allow one grandparent in and then you get the grandparents on the other side coming to court and saying, 'We want to be involved as well' and then it's impossible once you have let one grandparent in to refuse the other.
I do note from the papers that contact is being established with both sets of grandparents, paternal and maternal, so yes, there's a raft of reasons why I think it's inappropriate, but it's certainly ‑ it's open court and it's certainly open for any of the parties to call your client as a witness, so she has a right to be here in the court and she has a right to support her daughter and her daughter is legally represented and the views that she would be putting it sounds like are going to be presented by Ms Stokes. So it could seem to me her position is covered [ts 10 ‑ 11].
The magistrate then proceeded to have a directions hearing in respect to the protection application. The hearing of that application has been adjourned pending the outcome of this appeal.
There is a preliminary issue as to whether this court has jurisdiction to hear an appeal from a refusal of a Children's Court magistrate to join a person as a party to a protection application. None of the parties have raised this jurisdictional issue.
The Children's Court of Western Australia Act 1988 (WA) (the CC Act) s 42(1) provides:
42. Appeal against certain other orders
(1)Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the Children and Community Services Act 2004 the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction, 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.
That provision provides that a finding, order or other decision on the hearing of an application under pt 4 or pt 5 of the Act may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA).
In the Criminal Appeals Act an appealable decision of a court of summary jurisdiction is defined to cover eight types of final orders or orders related to final orders. The appellant cannot rely on those eight types of orders because they relate to final determinations of proceedings and also because they are specific to criminal prosecutions. Therefore, in order for the appeal to be competent, the Magistrate's refusal to make an order joining the appellant as a party must be a finding, order or other decision on the hearing of an application under pt 4 or pt 5 of the Act. If it was, the CC Act s 42(1) gives a right of appeal to this court against the refusal of the magistrate to make the order.
Given that none of the parties have raised the jurisdictional issue, there is not a requirement for me to go into a lot of detail about it. It is sufficient for me to say that I am of the view that the appeal is competent.
There are two sub‑issues involved in the jurisdictional issue. One is whether a refusal to make an order can be a finding or other decision. Another is, if it is, whether it was made on the hearing of an application under the Act pt 4 or pt 5, that is whether it is competent to appeal from what is essentially an interlocutory decision of the Children's Court made pursuant to the Act.
The application to be joined as a party was made pursuant to s147 of the Act which states:
147. Parties to the proceedings
In protection proceedings each of the following people is a party to the proceedings ‑
(a)the child;
(b)each parent of the child;
(c)the CEO;
(d)if the proceedings relate to a protection order (enduring parental responsibility) ‑
(i)the person or persons to whom parental responsibility for the child is proposed to be given under the order; or
(ii)the person or persons given parental responsibility for the child under the order,
as the case may be;
(e)any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.
Section 147 is unusually expressed in the positive but, by implication at least, it empowers the Children's Court to make an order that a person be joined as a party to a protection proceeding if they meet the criteria in s 147. Section 147 is contained in pt 5 of the Act. Part 5 deals primarily with the procedure to be followed by the parties in the Children's Court in protection proceedings.
In pt 5, the only final order which the court is empowered to make is an order to dispose of frivolous and vexatious protection proceedings. Consequently, if Parliament's intention had been to simply to grant a right to appeal against such a final order, there was no need to refer generally to pt 5 in the CC Act s 42(1). I infer that parliament did not intend the right of appeal given by the CC Act s 42(1) to be limited to findings, orders or other decisions related to applications to finally determine protection proceedings.
In order to give the CC Act s 42(1) meaning, it must include the right to appeal findings, orders or decisions made in respect to applications for interlocutory orders in protection proceedings, such as orders for the joinder of parties.
However, the magistrate did not make the order applied for by the appellant, rather he refused to make such an order. Is a refusal of an application for an order joining a person as a party a 'finding order or other decision' for the purposes of the CC Act s 42(1)?
It does not appear to me that a refusal to make an order is a finding, as that word would usually be defined. As to the term 'order', in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210, Spigelman CJ of the New South Wales Supreme Court determined that:
In its natural and ordinary meaning the word 'order' would not encompass a refusal to make an order.
He continued on to explain why that was so.
I perceive that the legislature, in using the phrase, 'any finding, order or other decision' on the hearing of an application under pt 4 or pt 5 of the Act, has used a particularly broad phrase, which appears designed to avoid the controversies that were referred to in Roslyndale Shipping as to the meaning of the word 'order'.

It seems to me that I am justified in relying upon the decision of the State of Western Australia v JJS (a child) (2004) 145 A Crim R 403, where the Full Court of this State considered whether a dismissal by the President of the Children's Court of an application by the prosecution for compensation orders in respect to offences of criminal damage was a 'decision' as to the jurisdiction of the Children's Court.
At that time the CC Act s 43(1) provided that in criminal proceedings an appeal lay from a 'decision' of the Children's Court. A 'decision' was defined to be a decision relating to certain specified matters. Nevertheless, the question before the Full Court was whether a refusal of the President of the Children's Court to make a compensation order was a decision. By a majority, the Full Court determined that it was a decision.
I conclude that the magistrate's refusal to make an order joining the appellant as a party amounts to 'any other decision' made on the application for an order under pt 5 of the Act. I therefore am of the view that the appeal is competent and I am prepared to determine it on its merits.
This is not to say that the interlocutory nature of such a decision is irrelevant to whether leave to appeal should be granted in respect to a proposed ground of appeal. I would expect that the well-established reluctance of courts of appeal to interfere in proceedings whilst they are on foot, except in clear cases warranting such intervention, would apply to appeals from interlocutory decisions of Children's Court magistrates under the Act: Hughes v Gales (1995) 14 WAR 434, 439. However, in this case, McKechnie J has already granted leave to appeal.
I now turn to the merits of the appeal. The Act s 7, states that in exercising a power under the Act in relation to a child, the Children's Court must regard the best interests of the child as the paramount consideration. Section 8 lists a number of matters which must be taken into account by the court when determining what is in the child's best interests. For the purposes of this appeal, I need only refer to some of those matters.
Section 8 states that in determining for the purposes of this Act what is in a child's best interests, the following matters, amongst others, must be taken into account:
…
(c)The capacity of the child's parents, or of any other person, to provide for the child's needs;
(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;
…
(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;
(ii)a sibling or other relative of the child;
(iii)a carer of 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;
(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.
I have already referred to s 147(e). That is the section that is relied upon by the appellant. It provides the criterion for joining a person as a party to protection proceedings if they do not meet the criteria in s 147(a) - (d). The decision as to whether a person is a party to proceedings must be made in light of the nature of the protection proceedings. In this respect, s 56 of the Act is relevant. That is the section under which the protection application was made. Section 56 states:
56. Extension of protection order (time‑limited)
(1)The CEO may apply to the Court for the extension of a protection order (time‑limited).
(2)An application under subsection (1) may be made at any time while the order is in force but only after a review of the care plan for the child has been carried out under section 90.
(3)If an application under subsection (1) is made but not determined before the day on which the order would otherwise expire, the order remains in force until the application is determined.
(4)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so -
(a)extend the order for a period not exceeding 2 years that ends before the child reaches 18 years of age; or
(b)revoke the order and, subject to this Part, make another protection order in respect of the child.
It is relevant to note that s 90 deals with the review of a care plan that must be carried out for the purposes of an application under s 56. The same terminology is used in s 90 as is used in s 147. That is, s 90 says that in the course of the review of the care plan the Chief Executive Officer must have regard to any views expressed by 'any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child'.
It is apparent that the legislature did not intend that a person's views should be taken into account for the purposes of a review of a care plan as a substitute for or instead of being able to be heard as a party to the proceedings. If a person has a direct and significant interest in the wellbeing of the child, they both have a right to have their views taken into account in respect to the review of a care plan as well as a right to be a party to the relevant protection proceeding.
What is also apparent is that, pursuant to s 56(4), a court, dealing with a protection application, such as this one, may simply extend a protection order or it may make another protection order in respect of a child. Thus, the court could make a protection order (enduring parental responsibility) in favour of the appellant if this was appropriate in the current proceedings before the magistrate. One of the concerns of both the magistrate and the first respondent in the Children's Court was that the only consideration for the magistrate under the protection application was whether B's parents were able to take care of him. This is an overly narrow view of the construction of s 56 and the nature of the protection application.
Finally, in respect to statutory provisions I refer to the definition of 'wellbeing' in the Act s 3. The wellbeing of a child is said to include 'the care, development, health and safety of the child'. The remainder of the phrase in s 147(e) of the Act is not defined by the Act. That is, the Act does not contain a definition of what it means to have a direct and significant interest in the wellbeing of the child. Further, none of the parties have been able to locate an authority directly on point as to what is the meaning of that phrase.
I now turn to resolve the three issues or questions which I posed at the commencement of these reasons. First, did the magistrate fail to apply the correct statutory test?
The magistrate did not expressly refer to the statutory criteria for joinder of parties to protection proceedings. There is nothing in his reasons to indicate that the magistrate was by implication adverting or having regard to those criteria, in particular the criterion in s 147(e). Indeed, his Honour's comments give rise to the reasonable inference that he had regard to the criteria in the repealed Act, which were different to and more restrictive than those in the Act.
The first respondent rightly concedes this ground of appeal.
I find that the magistrate failed to apply the correct statutory test for joinder as a party to the protection application, as specified in s 147 of the Act.
Secondly, did the magistrate fail to take into account all the relevant facts in determining the appellant's application to be joined as a party to the protection application?
There is no doubt that the magistrate put the appellant in the same category as 'any other grandparent'. Whether this was because he failed to take into account that the appellant's position was different to other grandparents because the appellant had the full-time care of B's younger brother, because she had had significant contact with B and because she had expressed a wish for him to reside with her from an early date, or simply because the magistrate did not believe that these matters distinguished the appellant from 'any other grandparent' is not entirely clear.
I am more inclined to the latter view as the appellant's counsel was clear that the appellant held that her position was different from other grandparents because of the matters I have just identified and B's counsel suggested that they distinguished her. It seems unlikely that the magistrate would have entirely failed to take the submissions of B's counsel into account. I am therefore inclined to the view that the magistrate gave these matters insufficient weight. In the end it does not matter, as either failing to give them any weight or failing to give them sufficient weight was an error on behalf of the magistrate.
Lastly, given my conclusions as to the first two issues, did the magistrate err in failing to permit the appellant to be joined as a party to the protection proceedings involving B and, if so, should I correct that error. The answers to both these questions is yes. The magistrate did err in failing to permit the appellant to be joined as a party and, yes, in my view I should correct that error.
The correct test for the magistrate was whether the appellant was a person considered by the court to have a direct and significant interest in the wellbeing of the child. That immediately raises the issue as to what that phrase means. As I have already said, there is no statutory definition of the whole of the phrase or any of the words in it, apart from the word 'wellbeing'. There is no authority directly on point either.
I have been referred to the dictionary definitions of the words 'direct' and 'significant'. They are of assistance. Both the Shorter Oxford English Dictionary and the Macquarie Dictionary have definitions of the word 'direct' to the effect that it means straightforward or immediate. They also include similar definitions of the same word to the effect that it means without intermediaries or without intervening agency, immediate and personal. Those definitions are also of assistance.
In respect to the word 'significant', it appears that the dictionary meaning, whether that be the definition from the Shorter Oxford English Dictionary or the Macquarie Dictionary, is that that word means important or notable.
It seems plain to me that the appellant has an immediate, straightforward and important interest in the wellbeing of B. Her care of the younger brother in circumstances where she, as a grandparent, asserts and has always asserted a willingness to care for B, together with a history of caring for him when she has been permitted to do so, is sufficient to establish such a direct and significant interest in the wellbeing of B so as to enable her to meet the test in the Act s 147(e).
I accept that the legislature intended that, in order to be a party to the proceedings, a person must be more than a relative (other than a parent) or have more than a direct lineal relationship with the child, for the purposes of s 147(e). The legislature also intended that the person's interest in the wellbeing of the child must be direct in the sense that they must immediately, and without any intermediary, have an interest in the care, development, health and safety of the child. Thus, it would not be sufficient for a person to be joined as a party to proceedings simply to support the interest of another person in the wellbeing of a child.
It is also notable that the legislature requires that the direct interest be an important interest.
It is obvious that the criterion in s 147(e) involves the exercise of a discretion on behalf of the court. Each case must be decided on its merits. For this reason, I would leave to one side the question as to whether some lesser or different interest, to that of the appellant would satisfy the criterion in the Act s 147(e).
However, it is pertinent for me to say that I accept the submission of the first respondent that in exercising the discretion under s 147(e) the court should take into account a variety of matters, including the length of time that the person seeking to be joined has had a relationship or an interest in the wellbeing of the child, the quality of the relationship or the interest in the wellbeing of the child and the history of that relationship or interest. It goes without saying that the Court must also consider whether the interest is a direct interest or not.
I also accept the first respondent's view that in exercising its discretion the court should have regard to the nature of the application before it and to whether the person's interest in the wellbeing of the child is significant in the sense that it relates to the matters that will be under consideration by the court. Other than that, as I have said, I would not seek to lay down any firm rules in respect to the exercise of the discretion. Each application for joinder must be decided on its merits.
The magistrate's reasons reflect his Honour's failure to apply the statutory test. They also reflect his failure to apply the principles contained in the Act s 7 and s 8. The magistrate's reasons reflect a failure to put appropriate weight on those matters which distinguish the appellant from others involved or concerned with B's life and which gave her a direct and significant interest in the wellbeing of the child.
I am also of the view that the magistrate put weight on matters which he should not have taken into account or which he should only have taken into account as peripheral issues. These included such matters as the complication of having multiple parties to the proceedings. A person cannot be held out from his or her right to be a party because it creates logistical problems for the court. That is not a criteria under the Act for joinder as a party. If the right exists on the criteria in the legislation, it exists.
Similarly, if a person has a right to be a party to a protection application, they cannot be stopped from exercising that right because his or her interests coincide with those of another party. Again, that is simply an issue which must be managed by the court. An experienced magistrate like his Honour would be well able to prevent the waste of the court's time by repetitive cross examination or submissions by parties with the same or similar interests.
Another example of a matter that the magistrate gave too much weight to was the possibility that if other persons were joined as parties their competing interests may take priority over those of the parents of the relevant child. There is no reason why parties, other than the parents of the child, cannot seek orders under the Act or express views which do not coincide with the orders sought or the views expressed by the parents of the child.
If a person has a direct and significant interest in the wellbeing of a child which entitles them to be a party, then they have the same rights as any other party to be heard in the proceedings. This does not mean that the views of each party have to be given the same weight by the magistrate.
Despite the fact that the decision of the Magistrate was not a final order disposing of the protection application, it is in the interests of justice that the appeal be allowed and that I order that the appellant be joined as a party to the protection application. It is true that if I do not intervene at this stage of the proceedings it may be that when the Children's Court does finalise the proceedings an appeal would be unnecessary because the appellant would not be aggrieved by the final decision of the court.
On the other hand, the denial of procedural fairness to the appellant, that is, the denial of the right to be a party and to be heard as a party, is an important issue which should be corrected if it can be done without undue interference with the protection application. As the hearing of the application has not yet commenced, I am satisfied that this can be done.
Consequently, I allow the appeal. I set aside the decision of the magistrate to refuse the appellant's application to be joined as a party to the protection application. Instead, I grant the application and order that the appellant is a party to the protection application by virtue of the Act s 147(e).

[2008] WASC 228

29 AUGUST 2008 (published: 30 October 2008)