PVS v Chief Executive Officer, Department for Child Protection
[2010] WASC 172
•14 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PVS -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASC 172
CORAM: MURRAY J
HEARD: 1 JULY 2010
DELIVERED : 1 JULY 2010
PUBLISHED : 14 JULY 2010
FILE NO/S: SJA 1002 of 2010
BETWEEN: PVS
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
FILE NO/S :SJA 1003 of 2010
BETWEEN :CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Appellant
AND
PVS
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P HOGAN
File No :CC 6471 of 2008, CC 6472 of 2008, CC 6473 of 2008
Catchwords:
Appeal from protection and care orders made by Children's Court - Application in appeal that child not be removed from jurisdiction until appeals determined - Power to make order discussed - Matter dealt with on the merits
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
SJA 1002 of 2010
Counsel:
Appellant: In person
Respondent: Mr S B Watters
Solicitors:
Appellant: In person
Respondent: Department for Child Protection
SJA 1003 of 2010
Counsel:
Appellant: Mr S B Watters
Respondent: In person
Solicitors:
Appellant: Department for Child Protection
Respondent: In person
Case(s) referred to in judgment(s):
Director‑General of Department for Community Development v T'Hart [2003] WASCA 110; (2003) 27 WAR 185
PVS v CEO of the Department of Child Protection [2009] WASC 406
Re Georgia and Luke [No 2] [2008] NSWSC 1387
Re Victoria [2002] NSWSC 647; (2002) 29 FamLR 157
MURRAY J:
The relevant proceedings
I will regard the appeal SJA 1002 of 2010 as the primary proceeding in relation to the two appeals, which have been ordered to be heard together. I will, throughout these reasons, refer to the appellant in SJA 1002 of 2010 as 'the appellant' and I will refer to the respondent in that proceeding as 'the respondent'.
The appellant has three children whom I will refer to as S (born on 15 January 1999), T (born on 8 December 2003) and J (born on 25 October 2006). Since 5 November 2008, the three children have been in the provisional protection and care of the respondent within the meaning given to that concept by s 29 of the Children and Community Services Act 2004 (WA) (the CCS Act).
On 5 November 2008, the respondent applied for a time limited protection order for a period of two years in relation to each of the three children. The details do not matter for present purposes, but pending the final determination of those applications, the children substantially remained in provisional protection and care upon the making of interim orders under s 133(2)(b) of the CCS Act.
The trial of the respondent's applications was a protracted process. Again, the reasons for that need not be discussed for the purposes of these reasons. The trial before his Honour Magistrate Hogan in the Children's Court was held on dates in May, July, November and finally, December 2009. On 24 December 2009 the respondent's applications were granted and his Honour made the finding that each child was in need of protection within the meaning of s 28(2)(c)(i), (iii) and (iv) of the CCS Act. Having regard to the terms of those provisions, that was a finding that each child had suffered, or was likely to suffer harm as a result of physical abuse, emotional abuse and psychological abuse and that the respondent had not protected, was unlikely to protect, and was unable to protect each child from further harm.
The court held pursuant to s 46, that it was satisfied that to make the orders sought on the protection applications would be better for the children than to make no order at all. It therefore made the time‑limited protection order sought in each case, ie for the period of two years pursuant to s 54 of the CCS Act. The effect of that order was to give the respondent exclusive parental responsibility for each child.
From those orders, both parties appeal. The appellant's notice of appeal, SJA 1002 of 2010, seeks to proceed on 18 grounds. I need not refer to them. On 15 June 2010, Blaxell J made various programming orders, included in which was the order giving the appellant until 19 July to file and serve amended grounds of appeal. The respondent's appeal, SJA 1003 of 2010, seeks leave to appeal on three grounds against the magistrate's refusal, in the light of the form of the protection applications before him, to make protection orders limited only to the 18th birthday of the affected child.
On 29 June 2010, the appellant applied on an urgent basis for an order that the child S should not be taken out of Australia for any reason until the appeals are resolved. After hearing argument from both parties, I dismissed that application. These are my reasons for doing so.
The power to make the order
The protection applications granted by his Honour, the magistrate were made under s 44 of the CCS Act, a section within Pt 4 of that Act. Section 42(1) of the Children's Court of Western Australia Act 1988 (WA) confers a right of appeal where the Children's Court is constituted by a magistrate and makes any finding, order, or other decision on the hearing of an application under Pt 4 of the CCS Act. The subsection provides that the appeal may be made in accordance with Pt 2 of the Criminal Appeals Act 2004 (WA) (the CAA) as if the decision against which the appeal is made, was a decision by a court of summary jurisdiction. The appeal may be brought by, among others, the CEO of the Department for Child Protection and the parent of the child in relation to whom the original application was made.
In the case of the appeals presently before this court, the finding and decision from which these appeals are brought is therefore an appellable decision, but the appeal must be brought 'in accordance' with the relevant provisions of the CAA. The appeal is to a single judge of this court and from the decision of that judge an appeal may be taken to the Court of Appeal under Div 3 of Pt 2 of the CAA.
The provisions in Pt 2 Div 2 govern the process of appeal to the single judge, but there are no sections in that Division which delineate the powers of the court in respect of the process of appeal and the orders which may be made prior to the decision of the appeal. Such provisions are, however, to be found in Pt 4 of the CAA: CAA s 37. In relation to the question of the powers of the court in dealing with an appeal, the crucial provision is s 40(1) of the CAA. The subsection provides that, '[f]or the purposes of dealing with an appeal', an appeal court may do any or all of' a wide variety of things.
However, the powers of the court are clearly expressed. The only one which might conceivably assist the appellant as providing power to make the order sought in her application is s 40(1)(l) which provides that the appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'. However, I can conceive of no power available to the Supreme Court in a civil case which would enable the court for the purpose of dealing with this appeal, to make the order sought in the appellant's application.
Conscious of the difficulty, the respondent was initially prepared to concede the power of the court to make the order sought in this application, referring to the Rules of the Supreme Court 1971 (WA), O 65 r 4(2). The concession was later withdrawn. Order 65 certainly deals with appeals to a single judge of the General Division, including in that term, applications for leave to appeal such as in this case. But O 65 r 2(1) provides that O 65 does not apply to an appeal or application for leave to appeal under Pt 2 of the CAA and, as I have indicated, that is the nature of these appeals, or more strictly, these applications for leave to appeal. The point is reinforced by O65 r 2(2) which provides that in any event, if the Order applies to an appeal or application for leave to appeal, the provisions of O 65 are, 'subject to the written law under which the appeal or application is made.'
In any event, if O 65 r 4 does apply to the appeals or applications for leave to appeal which are before me, it is in the following terms:
(1)For the purposes of dealing with an appeal, a judge has jurisdiction to make any order that the judge considers will or may facilitate the appeal being conducted and concluded efficiently, economically and expeditiously.
(2)Without limiting subrule (1), a judge has jurisdiction -
(a)to make a decision on the judge’s own initiative or on an application by a party;
(b)to decide an application on the basis of the documents filed and without listing it for hearing;
(c)to make a decision on the judge’s own initiative on the basis of the documents filed and without requiring the parties to attend a hearing;
(d)to hear and decide any application made during the appeal in the absence of any party other than the applicant;
(e)to hear and decide the appeal in the absence of any party other than the applicant;
(f)to order some or all of the parties to do one or more of the following in respect of the appeal, or any aspect of it specified by the judge —
(i)to file, before a date set by the judge, any document specified by the judge;
(ii)to appear and make oral submissions on a date set by the judge;
(g)to order a party to file and serve an appeal book;
(h)to order any or all of the parties to file and serve —
(i)written submissions;
(ii)a chronology of events relevant to the appeal;
(iii)a list of the principal legal authorities on which the party relies;
(i)to limit the time a party has to make oral submissions at a hearing before a judge.
It is noteworthy that under r 4(1), the general power of the court and the specific powers in subrule (2) are conditioned by the provision that the judge, 'has jurisdiction to make any order that the judge considers will or may facilitate the appeal being conducted and concluded efficiently, economically and expeditiously'.
An order that S shall not, during the process of appeal, be taken out of Australia, would not appear to me to have anything to do with facilitating the process of appeal. Nor do any of the specific powers provided in r 4(2) assist me to conclude, if they do apply to these appeals, that I would have the power to make the order sought.
The parens patriae jurisdiction
In argument, the appellant put the proposition that if there was any difficulty with the question of statutory power to make the order (as is my view) then she would rely upon what is often described in the old terminology, as the parens patriae jurisdiction of this court. In other words, she falls back on the proposition that if her application is not properly to be regarded as being in the nature of an interlocutory order made for the purpose of dealing with the appeals, or specifically her appeal, then it should be taken to be an application made at first instance to this court, rather than to the Children's Court.
I digress to observe that no submission was made to me as to whether or not that court would have the power under the CCS Act to make an order of the kind sought by the appellant. I note however, that an interim order of a related kind to that now sought by the appellant, was made during the course of the proceedings before the magistrate, relying on the power of the Children's Court, in the course of protection proceedings, to make an interim order as to any matter, 'that the Court considers appropriate': CCS Act s 133(2)(g).
An application had been made by the respondent for an order authorising S to travel overseas in the company of his carer in mid‑December 2009, for a period of four weeks. It seems that the idea was that the carer wished to visit family and friends in Germany by way of a holiday and wished to take S with her. Magistrate Hogan ordered that the application be dismissed, holding it to be inappropriate as the trial of the proceedings before the court drew to a close, for a child who was the subject of those proceedings and who might in fact be out of the country when the decision was handed down, not to be here in Western Australia.
His Honour's reasons, expressed in rather emotive language, focused upon that potential difficulty and the difficulty which would arise if for any reason (although there was no evidence that this was likely) the child should not be returned to this jurisdiction as was apparently planned. It is noteworthy that that was an application, during the course of the proceedings, for an interim order under an express power in the CCS Act. The circumstances, now that final orders have been made vesting exclusive parental responsibility for the children in the respondent, would seem to be quite different.
I note also that the applications and proceedings under Pt 4 and Pt 5 of the CCS Act are, by s 20(1)(a) of the Children's Court of Western Australia Act 1988, within the 'exclusive jurisdiction of the Children's Court to hear and determine all applications made with respect to a child'. That process of vesting the jurisdiction in the Children's Court, exclusive of other courts, is subject to any limitation on that vesting under the Children's Court of Western Australia Act. I have perused the provisions of that Act carefully. There are none which would limit the exclusive jurisdiction of the Children's Court to hear and determine the application presently before the court with respect to the child S.
I turn then to the question whether, nonetheless, this court would have jurisdiction of the kind referred to as parens patriae.
The jurisdiction of this court in that regard stems from s 16(1)(d)(ii) of the Supreme Court Act 1935 (WA). The enactment confers procedural powers which it is unnecessary here to set out, but so far as it confers substantive jurisdiction, the provision is in the following terms:
(1)Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court -
(d)shall be a court of equity, with power and authority within Western Australia and its dependencies -
(ii)to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England, … and to act in all such cases as fully and amply to all intents and purposes as the said Lord Chancellor or the grantee from the Crown of the persons and estates of infants, lunatics, and persons of unsound mind might lawfully have done at such date.
Of course the section is not expressed in modern terminology and, because the power is derived by reference to the powers exercisable by courts of equity in the United Kingdom, it is sometimes referred to as an inherent power or jurisdiction of the court. Its content is clear enough. So far as children are concerned, this court has a residual jurisdiction to safeguard the persons and property of children. That jurisdiction may be exercised along with, or in parallel to, other statutory jurisdiction, but it is a residual jurisdiction which may be excluded by other statutory provisions in the Supreme Court Act itself (as to which I think there are for present purposes, no relevant provisions) or by any other enactment by which jurisdictional power in respect of children is dealt with. The parens patriae jurisdiction may be excluded by such an enactment because the jurisdiction is conferred 'subject … to any other enactment in force in this State'.
The parens patriae jurisdiction of this court is excluded relative to the present application by the express provision which I have already mentioned, in s 20(1)(a) of the Children's Court of Western Australia Act, which confers upon the Children's Court exclusive jurisdiction (ie jurisdiction which may be exercised to the exclusion of the jurisdiction and powers of any other court, including the Supreme Court) to hear and determine all applications made with respect to a child under the CCS Act.
I referred to this matter in my judgment in PVS v CEO of the Department of Child Protection [2009] WASC 406 at [27] ‑ [28], but that case did not require a decision in respect of the availability of the parens patriae jurisdiction.
The leading authority on that jurisdiction in this State is Director‑General of Department for Community Development v T'Hart [2003] WASCA 110; (2003) 27 WAR 185. The leading judgment is that of Hasluck J, Murray and Wheeler JJ concurring on this point. T'Hart was an appeal from the decision at first instance of McLure J and her Honour was upheld on appeal.
The case concerned decisions taken within the department in respect of the placement of a child who had been committed to the care of the department and placed with the respondent. When that decision was changed and the child was placed in the care of another, the respondent challenged the decision by originating summons in the Supreme Court. The Director General sought to set aside the originating summons for want of jurisdiction. That application was unsuccessful before McLure J, and as I have said, her Honour's decision in that regard was upheld on appeal.
The appeal turned in part upon the availability of the parens patriae jurisdiction. The appellant had argued that the jurisdiction was not available because of the application to the case of the Family Court Act 1977 (WA) s 184(1), which provides that:
Proceedings that may be instituted under this Act must not be instituted otherwise than under this Act.
However, under s 202 of the Family Court Act, the jurisdiction under that Act to deal with an application of the kind brought by way of originating summons in the Supreme Court, could only be invoked with the consent of the appellant and the appellant declined to give that consent. The appellant's position before the Supreme Court was therefore that the proceedings instituted by originating summons could have been dealt with by an application in the Family Court if the appellant consented and therefore the jurisdiction of the Supreme Court, the parens patriae jurisdiction, was excluded. It was of no moment, the appellant argued, that he had in fact refused to give the consent which would have given the Family Court power to deal with the matter.
This argument failed because it was held that s 184 could hardly be regarded as excluding jurisdiction in the Supreme Court when the exclusive jurisdiction of the Family Court could not be invoked because of the refusal of the consent. Nonetheless, for present purposes, it can be seen that the case proceeded upon the acceptance that had the jurisdiction of the Family Court been in truth an exclusive jurisdiction, that would have deprived the Supreme Court of its power to exercise its parens patriae jurisdiction.
It appears that the position may be different in New South Wales and Victoria. There, it seems, the question which has arisen is whether the Supreme Court should exercise its admittedly unlimited, inherent parens patriae jurisdiction in case where the Children's Court, or its equivalent, has jurisdiction to deal with the matter at issue, generally concerned with the placement of children, their care and visiting rights.
In New South Wales there is a line of authority culminating in Re Victoria [2002] NSWSC 647; (2002) 29 FamLR 157 and Re Georgia and Luke [No 2] [2008] NSWSC 1387, in which the Supreme Court of New South Wales has held that the parens patriae jurisdiction will only be exercised in extraordinary circumstances, requiring the intervention of the court, although the matter is properly before the Children's Court. In the latter case, Palmer J added:
Further, the special experience and expertise of the Children's Court Magistrates should be given full weight and authority so that this Court should not lightly pre‑empt decisions within the jurisdiction of the Children's Court [14].
Were it within my power in this case to exercise the parens patriae jurisdiction, I would only think it proper to do so in extraordinary circumstances upon clear and cogent evidence adduced by the appellant/applicant, which would demonstrate that were this court to decline to exercise the jurisdiction, the paramount interest and welfare of the child would be jeopardised. That brings me to the merits of the application.
The merits
The appellant's application is supported by affidavit. It relies entirely upon the unsuccessful application brought during the course of the proceedings at first instance, which was determined by its dismissal on 19 November 2009 by Magistrate Hogan. I have read his Honour's ex tempore reasons, to which I have also previously referred. As I have said, they are expressed in rather emotive language, but the short point is that at the time of that application by the respondent, the trial before the Children's Court was coming to its conclusion and his Honour the magistrate clearly anticipated that his judgment would be given sometime in December 2009, as indeed it was.
He did not wish to see that judgment delivered while S was out of the jurisdiction. With respect, I would have thought it was clear that his Honour's concern about that was well founded, although there was no clear evidence to show that S might misbehave in Germany in such a way as to bring him to the attention of the authorities there. Nor, I think, was there real cause for concern that:
if something was to go wrong, the consequence would be, I fear, that we would never see [S] again. (ts 83)
On the other hand, there was apparently, expert evidence before the Children's Court in the form of a psychological report dated 13 November 2009 prepared by Dr Dear, who supported the overseas trip, offering the opinion that if S did not go, that might cause him to act out his frustration in some violent and problematic manner, as he had done in the past. On the other hand, Dr Dear expressed the view that he could see no risk to S's psychological health by going on the trip. The benefit of going, he concluded, outweighed the risks.
However, as I have said, that was a decision made prior to the making of final orders of the kind now in place. And the trip proposed, was now to be made in different circumstances. The respondent is confident of the expertise of the current carer, with whom S was placed on 5 March 2010. S seems to have bonded well with this carer. His behaviour has considerably improved. The placement is potentially a long‑term one and the respondent regards it as undesirable that it should be interrupted by a temporary placement if the present carer should go to Germany on holiday without S. The child was aware of the plan to travel overseas and was looking forward to it.
No clear reason was established by the appellant for the court to make the order sought, if it had power to do so. The best interests of the child was for me, as much as it would be for the Children's Court, the paramount consideration. There was nothing to show that it was in S's best interests, that the placement with his current carer should be interrupted and that he should be denied the opportunity to travel with her for a two week holiday in Germany. It was for those reasons that I dismissed the application.
Conclusion
The application of the appellant was for an order that S not be permitted to be removed from Australia for any reason until the determination of the appeals. It was an application in those appeals, but the court has no power to make an order of the kind sought under the Criminal Appeals Act, under which statute the appeals are to be held and determined.
Neither does the court have power to regard this as an application at first instance in this court under the parens patriae jurisdiction. The capacity to deal with such an application at first instance is vested exclusively in the Children's Court and the parens patriae jurisdiction of this court is thereby excluded.
Had that jurisdiction been available, it would not be proper to pre-empt the capacity of the Children's Court to deal with the matter, except in a clear and exceptional case, requiring this court to intervene by the exercise of that jurisdiction in the best interests of the child. It is the Children's Court which is the specialist court, established and vested with jurisdiction to deal with such a matter. No satisfactory ground for this court to take action, had it the power, was demonstrated by the appellant.
4
1