PVS v Chief Executive Officer, Department for Child Protection - [2010] WASCA 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PVS -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASCA 168

CORAM: PULLIN JA

HEARD: 1 JULY 2010

DELIVERED : 1 JULY 2010

FILE NO/S: CACR 97 of 2010

BETWEEN: PVS
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :PVS -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASC 172
File No  :SJA 1002 of 2010, SJA 1003 of 2010

Catchwords:

Practice and procedure - Urgent application for stay of an order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S B Watters

Solicitors:

Appellant: In person
Respondent: Department for Child Protection

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

PULLIN JA: This is an urgent application for an order by the appellant to prevent her child, S, from leaving the country tomorrow. The background to the matter is that the respondent sought a protection order concerning S. The hearing took place before Magistrate Hogan between May and December 2009. Before the decision was made by Magistrate Hogan in those proceedings, an application was made by the respondent for an order giving permission for S's carer to take the child to Germany while the carer visited members of her family. It came on before Magistrate Vose on 5 November and he refused to deal with the application and it was then referred to Magistrate Hogan for him to consider the application. The magistrate refused to make the order sought by the respondent and during the course of the hearing before the magistrate he said:
There is abundant evidence that if things do not go right, he will do the wrong thing. Psychologists would call it acting out. A layperson would say he will do the wrong thing. He could be violent. He knows how to dismantle a car by way of causing damage to it. He needs to know one way or the other whether he is going to Germany and he will know shortly. Ms Norton is the person who has seen him most recently, I think today, and we know from Ms Norton’s evidence that [S] was not going to school one other day this week and certainly not today. He is down at the DCP office because he feels comfortable there.
He also said:
But it is fragile and if he were to be overseas with this fragile relationship and if something was to go wrong, the consequences would be, I fear, that we would never see [S] again. Not in the sense he would be dead or anything, but I do not think we would ever see him again. So it is important that he stays here. It is in his interests that he stays here so that there are no more distractions and disruptions to the orderly running of this case so that it can be brought to a conclusion as early and speedily as possible, also so that [PVS] can have the contact that has been recently negotiated with DCP or in place. On balance, I think it is in his best interest and I find that it is in his best interests that the application be refused.
The magistrate then dismissed the application. The main hearing continued - that is, the substantive hearing continued - and it led ultimately to the decision of the magistrate of 22 December 2009 that the Chief Executive Officer of the Department for Child Protection have parental responsibility for S. S was then placed with the carer.
The appellant appealed to the General Division of the Supreme Court against that decision under the Children's Court of Western Australia Act 1988 (WA). That appeal has not come on for hearing, but yesterday the appellant gave notice of an application in the General Division for an urgent order preventing S being taken out of Australia until the appeal was determined. I understand that the carer plans to leave Australia tomorrow morning, taking S with her (once again to visit members of the carer's family) and then to return to Australia. The appellant filed an affidavit sworn 29 June 2009 in support of the application and attached to that affidavit were copies of the transcript of the hearing before Magistrate Vose and Magistrate Hogan.
The appellant's application was heard by Murray J this morning. The appellant submitted that nothing had changed since the hearings that had taken place in November last year, and that the damage that Magistrate Hogan perceived might be done if S went to Germany would be done now if he was taken to Germany by the carer tomorrow.
It is important to note that there has been one very significant change that has taken place since Magistrate Hogan made the observations that he did on 19 November 2009. That is that after the full and lengthy hearing for the protection order, a protection order was made which put S into the care of the respondent which now exercises parental responsibilities. Being armed with that order, it does not require any order of the court to take S out of the country (or to allow the carer to take S out of the country) if a passport can be obtained for S.
The hearing that came before Murray J was dealt with on an urgent basis. Unfortunately there are no reasons for decision at this stage and I am not clear as to the basis for the application. His Honour, after hearing the matter, dismissed the application and said that he would give reasons in due course but I am told that his Honour said that it was for the appellant to show that it was in the best interests of the child not to travel to Germany and that he was not satisfied that that had been demonstrated. I was told that reference was made to s 7 of the Children and Community Services Act 2004 (WA)
The appellant has instituted an appeal against Murray J's decision to dismiss the appellant's application and has brought before this court an urgent application seeking The order that I referred to at the commencement of these reasons; that is, an order preventing S leaving the country.
It is first necessary to understand the basis of the application before me. I understand it to be an application for a stay of Murray J's order or, alternatively, a suspension order pursuant to the Civil Judgments Enforcement Act 2004 (WA). (I do note that the appeal at least to Murray J is an appeal that is brought subject to the provisions of the Criminal Appeals Act 2004 (WA)). However, assuming that the application before me is for a stay, the question is whether such an order can be made. In a case where a court made an order giving the right to someone to take a child out of the country and that order was appealed against, it would be possible to make a stay order staying or suspending the effect of that order, but that is not what has happened here. All that has happened is that his Honour has dismissed an application which was brought by the appellant and so there would be no point in making a stay order. It would have no effect because if the order made by Murray J was stayed, there would be no effect on the carer and it would not prevent the carer from taking the child out of the country.
Assuming that the application is an application for a stay or a suspension order, the general principles that apply to such an application are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. Those principles are that a successful litigant will ordinarily be entitled to enforce its judgment pending the determination of the appeal. It is for the applicant for a stay to move the court to a favourable exercise of its discretion. The court will not grant a stay unless special circumstances are shown and a central issue is whether or not the refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal; that is, without the grant of a stay, the right of appeal to this court or to the General Division will be rendered nugatory.
The appellant says that the appeal will be rendered nugatory, or may be rendered nugatory, if S is taken out of the country, he misbehaves and for some reason he is then apprehended, held in custody and does not return to Australia. All that is based upon submission and assertion only. It is not based on any evidence at all and so I am not satisfied that there is any material before the court which would allow it to say that the appeal to this court or to the General Division would be rendered nugatory. Reference was made by the appellant to what was said in November last year by Magistrate Hogan and Magistrate Vose but things have moved on since then, as I have said, and after a full hearing, the protection order was made. If it were possible for a stay order to be formulated in some way to prevent that carer taking S out of the country pending the appeal, it would be necessary for the appellant to provide some evidence indicating that there was any real prospect that the child would not return to Australia. However, even if that could be demonstrated, a stay will generally be refused unless it can be established that the appeal has ultimately reasonable prospects of success. There is nothing that would show that there are reasonable prospects of success. The appellant says that grounds would be advanced indicating that there was error because his Honour erred by failing to recognise that by allowing the child out of the jurisdiction (and if the child gets into difficulty in Germany) the child may never return to Australia; but that is really to return to the point about the appeal being rendered nugatory rather than any allegation of error on the part of Murray J.
Secondly, it is said that his Honour made an error by taking into account that the carer was an ex‑policewoman who could, by virtue her past employment, intervene to assist S to get out of trouble. That is not a matter which indicates error on the part of Murray J because there is nothing to sustain the underlying proposition that there is a real prospect that S would get into trouble and not return to Australia.
Finally, there are questions about balance of convenience. It would certainly disturb the status quo if a child, who has now been in the carer's control for several months, suddenly had to go back into respite care while the carer goes to Germany to visit members of her family.
So for all of those reasons I consider that there is no merit in the application and I would dismiss it.