PVS v Chief Executive Officer, Department for Child Protection [No 2] - [2011] WASC 318

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PVS -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [No 2] [2011] WASC 318

CORAM: MURRAY J

HEARD: 20-22 DECEMBER 2010, 21 FEBRUARY 2011

DELIVERED : 22 NOVEMBER 2011

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:

Children - Protection proceedings - Requirements for fair trial - Discretionary nature of power to make order - Whether evidence supported orders made - Duration of protection orders - Sufficiency of reasons

Legislation:

Children and Community Services Act 2004 (WA), s 28, s 45, s 46

Result:

SJA 1002 of 2010: Appeal dismissed
SJA 1003 of 2010: Appeal allowed

Category: B

Representation:

SJA 1002 of 2010

Counsel:

Appellant: Mr S Walker and in person
Respondent: Mr S B Watters

Solicitors:

Appellant: Mr S Walker and in person
Respondent: Ms M Cowan, Department for Child Protection

SJA 1003 of 2010

Counsel:

Appellant: Mr S B Watters
Respondent: Mr S Walker and in person

Solicitors:

Appellant: Ms M Cowan, Department for Child Protection
Respondent: Mr S Walker and in person

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

Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
PVS v CEO, Department for Child Protection [2010] WASC 172
PVS v CEO, Department for Child Protection [2010] WASCA 168
PVS v Chief Executive Officer, Department for Child Protection [2009] WASC 406
S v Paskos (1992) 8 WAR 561
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
The State of Western Australia v Silich [2011] WASCA 135

MURRAY J:

The protection applications

These appeals were heard together. They are related matters, but the appeal SJA 1002 of 2010 is the principal appellate proceeding, and I ordered that it be the leading appeal. I will refer to PVS as the appellant in respect of both matters. As can be seen, SJA 1003 of 2010 is the Department's appeal. It is effectively a cross‑appeal and I will refer to the appellant in that appeal as the respondent.
The appellant has three children, to whom I will refer as S (born on 15 January 1999), T (born on 8 December 2003), and J (born on 25 October 2006).
On 5 November 2008, the respondent brought three applications in the Children's Court for time‑limited protection orders in relation to each of the children (AB 100, 102 and 104). As I understand the position, the children were then in the provisional protection and care of the respondent, pursuant to s 29 of the Children and Community Services Act 2004 (WA) (CCS Act). The respondent to the applications was in each case PVS.
At the same time as the applications for time‑limited protection orders were made, the respondent sought an interim child protection order in respect of each child pursuant to the CCS Act, s 133(2)(b). As I understand it, those orders were made and the children therefore remained in provisional protection and care pending the final determination of the respondent's applications.
The trial of those applications was a protracted affair. They were heard together on 11 ‑ 15 May, 20 ‑ 24 July, 16 ‑ 19 November, and 7 ‑ 8, 10 ‑ 11, 14 ‑ 18, 21 and 22 December 2009, before his Honour Magistrate Hogan. The CEO was represented and, from time to time, it appears that the appellant was represented. I say 'from time to time' because, although it is difficult to follow the process from the transcript of the proceedings in the Children's Court, it is evident that there were occasions when the appellant was represented, and occasions when she was not.
It appears to me that when she was not represented it was because she terminated the retainer of the lawyer provided for her with the assistance of a grant of legal aid. On occasions, it appears that his services were required for particular matters. Apart from the representation of the CEO, separate representation was provided for the children, pursuant to the CCS Act, s 148.
The respondent's case in support of the applications effectively took 10 days to present, on the sitting days 11 ‑ 15 May 2009 and 20 ‑ 24 July 2009. The matter was then adjourned to be resumed at the hearing which occupied 16 ‑ 19 November 2009. At this time, evidence was presented by the child representative for S, with witnesses called by the appellant being interposed from time to time by arrangement.
At this time, the court also heard an application by the respondent for an order which would permit the child S to travel to Germany with his foster carer for a short period. The court was told that S wanted to go. The application was opposed by the appellant and, after hearing witnesses relative to this application, his Honour dismissed the application, giving his reasons extempore on 19 November 2009 (ts 79 ‑ 93).
The hearing of the substantive applications resumed on 7 December 2009. Thereafter, the court sat for two days, on 7 and 8 December 2009. Two further days were provided, on 10 and 11 December 2009. These days were substantially devoted to the appellant's case in opposition to the applications, but again interspersed with evidence called by the child representative for S. The week of 14 ‑ 18 December 2009 was solidly devoted to the presentation of the appellant's case, as was the following Monday and Tuesday, 21 and 22 December 2009. The last witness called was the appellant herself.
It is very evident, at a number of points, particularly on the sitting days in December 2009, that his Honour was concerned at the time being taken. The children the subject of the applications had, for many months, been subject to orders for their provisional protection and care. While the applications remained unresolved, their fate remained uncertain and, of course, that was also the position of the appellant.
It is evident that his Honour sought to push on to the final closure of the cases of the parties. The CCS Act, s 7, enacts the general principle that in performing a function or exercising a power under the Act in relation to a child, the court, 'must regard the best interests of the child as the paramount consideration'. That is translated into the procedural requirement in s 145(3) that:
Protection proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child's family.
As will be seen from the grounds of appeal, I have been required to review all of the evidence and the exhibits, including much affidavit material received in evidence from various witnesses including the appellant. The applications took 25 days to try. The hearings generated over 3,500 pages of transcript. There were many pages of documentary exhibits, including affidavits of witnesses and numerous affidavits by the appellant, often with annexures, all received into evidence. In addition there were expert reports upon which such witnesses were cross‑examined. It has been a necessary, but time consuming, task to review that material.
The magistrate concludes his reasons usefully by providing a schedule of the evidence upon which he has relied and to which he has had regard. He records that the respondent to the appeal, in support of the applications made, called some 21 witnesses and tendered 60 documentary exhibits, many of which, as I have said, contained many pages of documents.
The child representative for S called a number of important witnesses. I have in mind, particularly, the clinical psychologist, Dr De Rooster, Dr Dear, a clinical psychologist, and Dr Veltman, a consultant psychiatrist. In addition, a Ms Bromley, the principal of Clarkson Primary School, gave significant evidence. That oral evidence was supplemented by a number of exhibits: reports, statements and the like.
The child representative for T and J did not adduce evidence, but did tender an affidavit and annexures sworn by Ms Engwerda, the officer of the respondent department who had brought the applications before the court.
The appellant, as I have indicated, presented a significant amount of evidence. She gave evidence herself and, on my reckoning, called 38 witnesses. It has been necessary for me to familiarise myself with all that material.
Each of the respondent's applications before the Children's Court contained the ground that the child was in need of protection, within the meaning of s 28(2)(c)(i), (iii), (iv) and (v) of the Act. On 24 December 2009, his Honour Magistrate Hogan published his reasons for decision. At that time he made the time‑limited protection orders for the period of 2 years sought in the original applications. In each case his Honour did so, relying upon s 28(2)(c)(i), (iii) and (iv) of the Act.
It is convenient to set out the material parts of s 28:
When child is in need of protection
(1)In this section -
harm, in relation to a child, means any detrimental effect of a significant nature on the child’s wellbeing;
neglect includes failure by a child’s parents to provide, arrange, or allow the provision of -
(a)adequate care for the child; or
(b)effective medical, therapeutic or remedial treatment for the child.
(2)For the purposes of this Part a child is in need of protection if -
(a)…
(b)…
(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i)physical abuse;
(ii)sexual abuse;
(iii)emotional abuse;
(iv)psychological abuse;
(v)neglect,
and the child’s parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d)…
It can be seen that the respondent's applications relied upon all the matters enumerated in s 28(2)(c) except sexual abuse, and the court found that each child was in need of protection as a result of harm suffered and anticipated as a result of physical, emotional and psychological abuse.
To establish that the children or, more correctly, each child was in need of protection, the respondent had to prove, not that the appellant was the person who abused the child physically, emotionally and psychologically, but that the child had suffered, or was likely to suffer, any one or more of those types of abuse and that the appellant had not protected, or was unlikely to protect, or was unable to protect, the child from that harm or further harm of that kind.
It had to be proved that the child had suffered, or was likely to suffer, the harm and that the appellant had failed to prevent it, or was unlikely or unable to prevent further harm of that kind occurring in the future. In this case, however, the evidence adduced sought to establish that the appellant was the perpetrator of the harm and, because of her psychological condition, she would continue to do so or was incapable of preventing further harm from occurring.
In making its decision in each case, the court had regard to the important provision, the 'no order principle' expressed in s 46, as follows:
No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
The effect of making a time‑limited protection order is set out in s 54:
Protection order (time-limited)
(1)A protection order (time‑limited) is an order giving the CEO parental responsibility for a child for the period specified in the order.
(2)While a protection order (time‑limited) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.
The respondent therefore has exclusive parental responsibility for each child until 24 December 2011. Section 55 provides that such an order remains in force for the period specified in the order unless that period is extended or the order is revoked by the Children's Court. A protection order made until the child turns 18 may also be revoked while it is in operation: s 59.

The appeals

The appellant brought an appeal from those orders on 15 January 2010. The appeal notice relied on 18 grounds of appeal (AB 9 ‑ 14). On 15 June 2010, Blaxell J held a case management hearing and made various programming orders, including one which gave the appellant until 19 July 2010 to file and serve amended grounds of appeal upon which the appellant proposed to rely. The appellant was unrepresented during this period and she did not comply with his Honour's order.
Instead, on 19 July 2010, she filed a document which described itself as the 'partial re‑submission of Appeal SJA 1002 0f 2010 to be in addition to that already filed'. The grounds of appeal to be added are at AB 18 ‑ 42. The material is argumentative in form and it is difficult to extract a set of manageable grounds of appeal from the voluminous material presented by way of argument.
Shortly after Blaxell J made his orders on 15 June 2010, I took over the management of the appeals. There were a number of interlocutory processes to be dealt with. One matter, an application by the appellant to prevent S being removed from the jurisdiction pending the determination of the appeals, generated a formal judgment: PVS v CEO, Department for Child Protection [2010] WASC 172; and an immediate application to the Court of Appeal for leave to appeal: PVS v CEO, Department for Child Protection [2010] WASCA 168. Other matters were dealt with informally on the papers, or by springing orders made by Blaxell J.
Attempts were made to get the appeals on for hearing, initially on 21 and 22 October 2010. They were unsuccessful, not the least because during this period the appellant was seeking a grant of legal aid, an application supported by the court because of the appellant's evident difficulty in effectively progressing the matters without legal assistance.
Ultimately, counsel was provided, funded by a grant of legal aid, and the appeals were listed to be heard in December 2010.
Little was done on 20 December 2010. Amended grounds of appeal were provided and the matter was adjourned to enable counsel for the appellant to make a final decision upon an application to admit fresh evidence, to which evidence I shall later refer. The application was made on 21 December 2010 and was opposed. I gave reasons shortly at that time for my decision to admit the material tendered in evidence, subject to the question whether the respondent would wish to have the witnesses tendered for cross‑examination. In the end, that was not required.
The appellant's case was argued on 21 and 22 December 2010 on substituted grounds. Included in that argument were submissions related to the matter which ultimately became ground 5 of the appellant's grounds of appeal, a ground formulated after the argument had been presented for the appellant, but before the hearing was resumed, and therefore the ground was available when the respondent's case was presented.
I set out the five grounds of appeal in SJA 1002 of 2010:
1.The learned Magistrate made an error of law, in that the trial was conducted, and rulings and comments were made by the learned Magistrate, in circumstances of apprehended bias, namely circumstances in which a fair‑minded observer might reasonably apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the task of deciding the applications seeking Protection Orders (time-limited) in respect of each of her three children.
Particulars
(a)Undue and persistent interference with both examination-in-chief and cross-examination conducted by the Appellant;
(b)repeated exclusions of the Appellant from the trial;
(c)unreasonable time limits placed on the Appellant’s cross-examination of some witnesses;
(d)refusal to permit the Appellant to call a number of witnesses who could have given relevant evidence; and
(e)on 15 December 2009, very shortly after having excluded the Appellant from the trial, and she not being represented at the time by a legal practitioner, the learned Magistrate proposed that as the Appellant was not there to call her witnesses the evidence should be taken as having concluded and closing submissions should be presented on behalf of the other parties.
2.The learned Magistrate made an error of law, in that the trial was conducted in such a way as to cause, and rulings were made which resulted in, a denial of procedural fairness to her.
Particulars
(a)On many occasions, including some when she was not being represented by a legal practitioner, she was excluded from the trial;
(b)unreasonable time limits were placed on her cross-examination of adverse witnesses, including some key expert witnesses; and
(c)rulings were made that the Appellant could not call a number of witnesses whom she wished to call and who could have given relevant evidence on the issues before the Court.
3.Following a very lengthy trial the learned Magistrate erred in law in failing to provide adequate findings and reasons to enable a proper understanding of the basis for his conclusions that each child was in need of protection pursuant to s.28 (2)(c)(i), (iii) and (iv) of the Children and Community Services Act 2004.
Particulars
(a)Although the learned Magistrate found or purported to find, compendiously, that:
(i)each of the children had suffered harm;
(ii)the harm was a result of physical, emotional and psychological abuse caused by the Appellant;
(iii)each child was likely to continue to suffer physical, emotional and psychological harm should he remain with the Appellant;
(iv)she had not protected the children from that harm; and
(v)she was both unlikely and unable to protect each child from further harm
nonetheless his Honour failed to:
(vi)identify the harm suffered by each child and the abuse which was said to have been caused by the Appellant and to have led to the harm; and
(vii)explain why the Appellant was both unlikely and unable to protect each child from further harm and thereby fell into error.
4.As a consequence of each of the matters set out in each of Grounds 1, 2 and 3, both individually and cumulatively, there has been a miscarriage of justice.
5.The evidence before the learned Magistrate was insufficient to support the findings and orders made, so that they cannot be regarded as having been reasonably open to him, having regard to the onus and standard of proof and the nature of the allegations made and of the proceedings.
Particulars
(a)The orders were, in each case, the product of the exercise of a discretionary judgment;
(b)The appellate task of this Court is to review the evidence before the Children’s Court, supplemented by the further evidence received on the appeal;
(c)The key findings of fact which underpin the overall conclusions, and the orders, are that the Respondent caused:
(i)[S] to be unnecessarily examined for signs of sexual abuse, and [T] for signs of a head injury, and these actions amounted to causing them psychological harm (Judgment [82] & [83] and [110]‑[116], AB 64-65 and 71-72);
(ii)physical harm to [J] by leaving him in a motor vehicle on approximately ten occasions (Judgment [90]-[93], AB 66-67); and
(iii)[S] physical harm by depriving him of food and pushing him against a wall, and emotional and psychological harm by imposing adult responsibilities on him (Judgment [94]-[100], AB 67-68);
and that:
(iv)she will not have any significant period of stable psychological functioning in the future (Judgment [133], AB 75);
(d)The learned Magistrate further concluded (Judgment [134] to [136), AB 75-76) that the children were likely to continue to suffer physical, emotional and psychological harm should they remain with the Respondent, that she had not protected them from that harm and that she was both unlikely and unable to protect them from further harm (the last two of which were axiomatic findings);
(e)The finding set out at sub-par (c) (iv) above, that the Respondent will not have any significant period of stable psychological functioning in the future, cannot be sustained on the whole of the evidence, including the expert evidence received on the appeal;
(f)In any event, the above factual findings, and the whole of the evidence at trial, together with the expert evidence received on the appeal, were insufficient to support a proper exercise of the discretionary judgment which led to the making of the orders.

For completeness, I observe that on 21 December 2010 the court received an application from the appellant personally, to adjourn the hearing of the appeals on various grounds which might compendiously be described as referring to counsel's alleged unpreparedness. The application was not pursued and I should say that there was nothing to indicate to the court, in the way in which the appellant's case on the appeals was presented, that counsel was unfamiliar with any material aspect of the case.
To assist the appellant to prepare the matter for hearing, the court, at public expense and at no cost to the appellant, prepared the necessary papers. The court prepared appeal books containing the notices and grounds of appeal. Those grounds did not, of course, include the grounds set out above, upon which the appellant's appeal, SJA 1002 of 2010, ultimately proceeded. In addition, the appeal books contained the applications made to the Children's Court and the orders made upon those applications, and his Honour the Magistrate's published reasons, extending to 57 pages, including the list of witnesses called and documents tendered as exhibits.
In addition to the paper appeal book, the appeal proceeded upon an electronic book comprising the transcript of the hearing in the Children's Court and the majority of the exhibits, excepting those exhibits which were comprised of files, which themselves contained many documents.
At the completion of the hearing on 22 December, the matter was adjourned to resume on 21 February 2011, at which time the respondent was to respond in the appeal SJA 1002 of 2010 and, at the same time, present his argument on the appeal, SJA 1003 of 2010, following which it was proposed that the appellant would reply, and respond in relation to SJA 1003 of 2010.
Before court resumed on the morning of 21 February, I was provided with an informal document which apparently was sent by facsimile to Martin CJ. The appellant was the author. She advised that she had dispensed with the services of counsel and she sought an adjournment of the appeals. Martin CJ informed me that, in his view, there was no matter which required or would justify his intervention.
When the hearing of the appeal resumed in open court, the appellant was not present. Her counsel informed me that his instructions had been terminated. He sought my leave to retire, which I granted. I then heard the informal application for an adjournment. It was opposed and I refused it, expressing the view that, in the written material which had been sent to the court that morning, there was nothing which would justify the grant of an adjournment.
I heard the arguments presented by the respondent and I then adjourned, reserving my decision. However, because of her absence, the appellant had not had the opportunity to present argument of the kind which would have been open to her had she attended the court. I therefore ordered that she have leave to file written submissions by close of business on 18 March 2011 and further ordered that the court would provide a copy to the respondents.
In my view, in those circumstances there was nothing to suggest that the interests of justice were adversely affected in this case upon the basis that the appellant would be deprived of any opportunity to present her case: cf The State of Western Australia v Silich [2011] WASCA 135 [36] ‑ [37].
To ensure that the appellant had all the documents necessary to enable her to make any written submissions that she wished, I ordered personal service of transcript, submissions and supporting documents emanating from counsel on both sides, the amended grounds of appeal and a disk containing the materials in the electronic appeal book, previously supplied to the appellant.
Ultimately, an affidavit dated 10 March 2011 was received from the process server. He attempted service at the appellant's home address on 24 February, 25 February, 26 February and 28 February 2011. Nobody came to the door to accept service. Calling cards left by the process server were removed. On the last occasion it appeared that there was somebody home, but nobody came to the door. There was mail in the letterbox, addressed to the appellant. Ultimately, service was attempted by registered post.
On 18 March 2011, documents were received from the appellant, seeking an adjournment and that I should not hand down a judgment. It seems that the order made in relation to the filing of written submissions was misunderstood. An attempt was made to advise the appellant that nothing would happen on 18 March, but she should file any submissions she wished to make as soon as she was able. Nothing has been received.
There are three grounds of appeal in SJA 1003 of 2010:
1.The learned magistrate erred both in law and fact when he failed to adequately consider Section 7 of the Children and Community Services Act 2004 ('the Act') when determining not to make an Order to age 18 for each child (Reasons at [137]).
2.The learned Magistrate erred both in law and fact when he applied an incorrect test in determining not to make an Order to age 18 for each child ([137]);
Particulars
a)His Honour held that fairness to the respondent dictated that she know the case against her;
b)His Honour held it would be unfair to the respondent to ask her, at the conclusion of all the evidence, to meet the case on a different basis.
3.The learned Magistrate erred both in law and fact when he failed to properly and/or adequately consider Sections 43 & 45(b) of the Act when determining not to make an Order to age 18 for each child ([137] ‑ [139]).

The nature of the protection proceedings

The three protection applications were made under s 44 of the CCS Act, a section in Pt 4 of the Act. By s 45, if the Children's Court finds that the child is in need of protection (within the meaning of s 28), the court may make the protection order, or make another protection order in respect of the child. It can be seen that the thrust of the respondent's appeal, SJA 1003 of 2010, is that, having regard to the evidence and the findings made by the magistrate, his Honour should have made a protection order which would have effect until each child turned 18.
In my view, the no order principle set out in s 46 makes it clear that the court is not obliged to make a protection order if it finds that the child is in need of protection, but it must only do so if it is satisfied that to make the order would be better for the child than making no order at all. So it is, I think, that it may properly be said that the decision whether or not to make a protection order is a matter of discretionary judgment, the discretion being exercised in accordance with the objects and principles espoused in the CCS Act.
As to that, I note that the legislation was enacted in 2004. The Act was substantially proclaimed to come into operation on 1 March 2006: Government Gazette 14 February 2006, p 695. Reference to the minister's second reading speech shows that it was enacted to improve the provisions of the law concerned with securing the well‑being of children, but at the same time recognising that, wherever that could be catered for by assisting parents and families, then what was described as evidence‑based best practice suggested that that was the appropriate course to take. As the Hon Minister put it:
Overwhelming research supports the view that children's wellbeing is best maintained in their families and communities, and that the experience of being 'in care' can result in its own set of negative consequences.
It is clear that new provisions governing the protection and care of children, in Pt 4 of the Act, were regarded as a 'major reform' and a distinct improvement upon the provisions formerly contained in the Child Welfare Act 1947 (WA). The minister summed up the approach taken by observing that a significant outcome to be derived from the enactment of the legislation included, 'better long‑term outcomes for children who have been harmed and cannot live at home'. The minister added:
This last outcome is the most important of all. There is an overwhelming body of evidence to indicate that the social and physical experiences in the early years of life affect learning, behaviour and health throughout life. We must strive to prevent harm occurring to our children and to offer redress when this does occur. I reiterate the Government's strong commitment to protecting children and a new way of working with families.
Hence the objects of the legislation, as set out in the CCS Act, s 6:
6. Objects
The objects of this Act are -
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e)to protect children from exploitation in employment.
The Act goes on, in ss 7 ‑ 10, to set out a series of general principles relating to children. I have mentioned that s 7 relevantly requires the Children's Court, in exercising a power under the Act, to, 'regard the best interests of the child as the paramount consideration'. Section 8 goes on to set out a series of matters which must be taken into account, but which are not an exclusive list, in determining what is in a child's best interests.
Without wishing to close the list, for the purposes of this case it seems to me that the material parts of s 8(1) include at least the following, to which the magistrate was obliged to, and did, have regard:
8. Determining the best interests of a child
(1)In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account -
(a)the need to protect the child from harm;
(b)the capacity of the child’s parents to protect the child from harm;
(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;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;
(f)any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views;
(g)the importance of continuity and stability in the child’s living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i)the child’s parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child’s life;
(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;
Section 9 reinforces the approach by setting out a number of guiding principles which must be observed in the administration of the Act. I need not, for the purposes of this judgment, refer to any particular matters, but it is appropriate to observe that, in protection proceedings, the Act makes detailed provision in Pt 5 for the procedural processes governing the exercise of the discretion conferred by the Act.
The proceedings are generally adversarial, but I note that, under s 139, the court may require a person to provide, 'a report on any matter relevant to the wellbeing of the child'. The report is admissible in evidence, and it is for the court to give such weight to its contents as it thinks fit. In this case there were a number of reports admitted in evidence. Not all of them could be described as expert reports, but they were substantially of that character, reports by psychiatrists, medical practitioners and psychologists, principally engaged by the parties. Generally, it seems to me, the authors of the reports were called to give oral evidence and be cross‑examined. Where that was not the case, the opinions and propositions espoused in such reports were able to be tested by cross‑examination of a witness familiar with the matters discussed in the report.
Because of the criticisms made of the magistrate's conduct of the proceedings, in the appellant's grounds 1 and 2, it is appropriate, I think, to set out the terms of the CCS Act, ss 145 and 146:
145. Conduct of protection proceedings generally
(1)Protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.
(2)Without limiting subsection (1), if the child is present in court, protection proceedings are to be conducted in a way that is sensitive to the child’s level of understanding.
(3)Protection proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child’s family.
146. Court not bound by rules of evidence
(1)In this section -
representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
(2)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.
(3)Without limiting subsection (2), evidence of a representation about a matter that is relevant to the protection proceedings is admissible despite the rule against hearsay.
(4)The Court may give such weight as it thinks fit to evidence admitted under subsection (3).
Finally, I note the terms of s 151:
151. Standard of proof
The standard of proof in protection proceedings is proof on the balance of probabilities.
Because of the seriousness of the court's powers upon a finding that a child is in need of protection the evidence to be relied upon should, however, be of a relatively high degree of cogency and persuasive power: S v Paskos (1992) 8 WAR 561, 566 (Murray J)

The nature of the appeals

As to the right of appeal and the appellate process, I discussed s 42 of the Children's Court of Western Australia Act 1988 (WA) (CCA), and its reference to the appeal being in accordance with Pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), in my judgment in PVS v CEO, Department for Child Protection [2010] WASC 172 [8] ‑ [9]. I need not repeat that discussion, but it is relevant to note that the appeal to this court, as from a court of summary jurisdiction, may be made upon a ground that there has been a miscarriage of justice, eg, the appellant's grounds 1 ‑ 4: CAA, s 8(1)(b).
In my view, that would also be sufficient to accommodate the complaint raised by the appellant's ground 5, which complains that each of the decisions of the magistrate to make a protection order was not open, upon the whole of the evidence before the Children's Court. But I shall say a little more about what I consider to be the proper approach to the consideration of ground 5 when I come to deal with that ground.
The respondent's grounds of appeal simply raise what is, in truth, one question, whether the failure of his Honour the magistrate to make a protection order until age 18 in each case, involved errors of law and fact: CAA, s 8(1)(a)(i).
Leave to appeal is required in relation to each ground if the appeal is to succeed on that ground: CAA, s 9. In this case, the question of leave in relation to both appeals is to be dealt with at the time of hearing the appeals. My powers on the hearing of the appeal are contained in CAA, s 14. I note that even though upon any ground I might allow the appeal, I may dismiss it if I consider that no substantial miscarriage of justice has occurred: CAA, s 14(2).
Generally speaking, an appeal to this court under those provisions is by way of rehearing. The appeal must be decided on the evidence and material before the lower court: CAA, s 39. But it is a qualification to that process that new or additional evidence may be admitted in the proceedings before this court: CAA, s 40(1)(e). As I have already remarked, in this case I exercised that power and admitted in evidence the reports of two witnesses tendered by the appellant.
They are reports of a psychiatrist, Dr Fischer, dated 14 June 2010 and 4 July 2010, and reports of a psychologist, Mr Brewer, dated 2 February 2010, 4 March 2010 (two reports), and 2 June 2010. As can be seen, they are all reports made after the hearing in the Children's Court. They concern the appellant's mental health and psychological condition.
They were admitted as material additional to the evidence before the Children's Court concerned with the question whether the appellant was unlikely or unable to protect the children from harm of the kind relied upon in the applications before the court, and therefore bearing directly on the question whether his Honour the magistrate was in a position which required him to make a protection order in relation to each of the children.

The trial process - a miscarriage of justice?

The appellant's grounds 1 and 2 may be taken together. Ground 1 identifies aspects of the conduct of his Honour the magistrate which, it is contended, resulted in a reasonable apprehension of bias on his Honour's part. But in any event, it is contended by ground 2, whether or not there was a reasonable perception of bias, the conduct and rulings of his Honour were such as to result in material unfairness in the trial process from the point of view of the appellant.
The particulars in relation to both grounds are similar. Reliance is placed on undue and persistent interference with examination‑in‑chief and cross‑examination conducted by the appellant. It is argued that unreasonable time‑limits were placed on her cross‑examination. It is said that she was repeatedly excluded from the trial, and his Honour refused to permit her to call a number of witnesses who could have given evidence relevant to the issues before the court. Ground 1(e) relies on an incident which is described as having occurred on 15 December 2009. I need not set it out here, but will deal with it when discussing the facts.
A sufficient statement of the legal principles involved may be taken from the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337, 344 ‑ 345 [6] ‑ [7]:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The principles are clear. It is a fundamental requirement of the adversarial process of trial under our system that the court should be, and be seen to be, both independent and impartial so that justice may not only be done, but may be seen to be done. If, to the reasonable lay observer, there is an appearance of bias in the conduct of the trial, then, even though the tribunal of fact may be unbiased in fact, the trial will miscarry. There will be a miscarriage of justice and, in a case such as this where the trial has been held, on appeal the judgment will be set aside and, in a proper case, the matter will be remitted to the court at first instance to be tried again.
The appellate court will not inquire into the question whether, in truth, the court below was entirely impartial. If there is a reasonable apprehension of bias available to the reasonable lay observer in the judgment of the appellate court, a fundamental feature of a fair trial will be lacking. In my opinion, the proviso, as it is called, arising under CAA, s 14(2) in this case, will not be applied. This court could not dismiss the appeal on the basis that it considered that no substantial miscarriage of justice has occurred.
In my view, if his Honour the magistrate failed to afford a fair trial in the ways alleged in grounds 1 and 2, the appellant would not have had the trial of the issues raised by the respondent's applications to which she was entitled. It would, in effect, have been no trial at all and, in those circumstances, there can be no contention that there has been no substantial miscarriage of justice: Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 per Buss JA, 418 ‑ 425 [8] ‑ [27], Miller JA, 437 ‑ 440 [114] ‑ [121] and Murray AJA, 442 ‑ 448 [135] ‑ [160].

Procedural fairness

The matters raised in grounds 1 and 2 by the appellant under the general rubric of an alleged denial of procedural fairness, in a way which exhibited a reasonable perception of bias and infringed the appellant's right to a fair trial, thereby causing a miscarriage of justice, may be dealt with compendiously by considering the matters constituting the particulars of these grounds.

The exclusion of the appellant from the proceedings

By the CCA s 20(1)(a), the Children's Court has exclusive jurisdiction to hear and determine applications made with respect to a child under the CCS Act. By s 20(2), s 172 of the Criminal Procedure Act 2004 (WA) applies to the court when it is exercising that jurisdiction. Section 172 provides, so far as material, that a party to a case is personally entitled to appear before the court, 'in order to present and conduct the party's case and to call, examine, cross‑examine and re‑examine witnesses.' By s 172(3)(b)(i) the exercise of that right may be by a lawyer on the party's behalf.
As I have observed, in this case, the appellant was represented by counsel, Mr Meredith, but from time to time she dispensed with his services and took over. It was a very odd situation. Mr Meredith remained on the record, but if the appellant thought he was unprepared or was not performing the presentation of her case in the way that she wished, she would dispense with his services, sometimes almost in mid‑question. After some time, during which the appellant conducted her case, Mr Meredith would reappear, apparently at the appellant's invitation.
The right to conduct a party's case does not, however, in my opinion, mean that the presiding judicial officer may not take what measures are deemed necessary to ensure that the applications before the court are dealt with fairly and expeditiously so far as the other parties are concerned. I have referred, in that regard, to the indorsement of that view contained in s 145 of the CCS Act.
If it is necessary to achieve fairness to the other parties, in my opinion, the appellant might be excluded from the proceedings for a time to enable the magistrate to exercise proper control over the way in which they were conducted. The CCA s 31(1) provides, so far as material:
At any hearing or trial relating to … any application concerning, a child or where the interests of a child may be prejudicially affected, the Court may order that any persons shall be excluded from the court‑room or place of hearing.
No doubt the primary thrust of that provision is to preserve the anonymity of any affected children. But I see no reason to suppose that it is not sufficiently widely expressed to enable a party to the proceedings to be temporarily removed from the courtroom if no other means can be employed to prevent disruption of the proceedings.
If that view is wrong, then I note that the CCA s 37(2)(b) provides that the practice and procedure of the Children's Court when it is exercising jurisdiction conferred by s 20, as in this case, is that provided by the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCA) and the rules of court made under that Act.
Important guidance in relation to procedure generally is given by the MCA s 13, which is in the following terms:
13. Court’s duties in dealing with cases and making rules
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring -
(a)that cases are dealt with efficiently, economically and expeditiously;
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court’s judicial and administrative resources are used as efficiently as possible.
The catchwords then, are efficiency, economy and expedition subject to the overriding requirement to deal with cases justly. The rulemaking power is contained in s 14(1). There is no rule of court expressly governing the exclusion of a party from a hearing, but I note that s 16(1) of the MCA provides extensive powers for the purpose of controlling and managing cases and trials. Apart from specific powers, s 16(1)(t) provides that the court may, 'take any other action or make any other order for the purpose of complying with s 13.' In my opinion, it would follow that a person, even though a party, may be excluded from a hearing to facilitate the efficient, economic and expeditious process of trial without any substantive adverse effect upon the fairness of the trial process.
I note in passing that the thrust of the complaint by grounds 1 and 2, is not that the magistrate lacked the relevant power, but that he exercised it in such a way as to deny procedural fairness to the appellant in circumstances which revealed a reasonable perception of bias.
Before considering the specific occasions when the appellant was ejected from the courtroom (only briefly on each occasion), I should say that reading the transcript reveals that the appellant's behaviour was often rude, argumentative and disruptive. She was disinclined to accept rulings made by the magistrate, even if of a case management kind and she would continue to argue and seek to engage the magistrate in debate.
She was ejected for the first time on 20 July 2009. Ms Norton, a senior social worker employed by the respondent and centrally involved in this case, was giving evidence. She was being cross‑examined by Mr Meredith for the appellant. The appellant continuously called out, accusing the witness of lying. His Honour the magistrate warned her to desist on a number of occasions. She refused to do so and she was ejected at about 11.30 am. At about 12.00 pm, the appellant sent a note into the courtroom. It told her counsel that he was 'fired'. He withdrew. The appellant was permitted to return to the courtroom. After debating what was to be done, the court was adjourned for lunch and upon resumption at 2.00 pm the appellant continued the cross‑examination.
Ms Norton was still being cross‑examined by the appellant when the court adjourned for the day. The proceedings were resumed at 10.00 am on 21 July. Apparently it had been proposed to interpolate some witnesses, but that was not to occur. The appellant said she was unprepared to continue the cross‑examination of Ms Norton. She had no papers. They were in her car. The court offered to allow her to get them. It then appeared she had a document containing her lawyer's notes for cross‑examination, but the appellant continued to assert that she was unprepared and she wished to have an adjournment. That was denied and the appellant was urged to continue. She declined to do so, observing that she was being prevented from defending the respondent's applications. She said that the court had made up its mind. She was told that as she would not continue the cross‑examination, it was at an end and she should sit down. She declined to do so and was ejected for the second time, allowing another party to commence to cross‑examine Ms Norton.
At the conclusion of Ms Norton's evidence, just before 11.30 am, the appellant was invited to return to the courtroom and did so. The respondent continued the presentation of their case, calling a clinical psychologist registrar who worked at the Trauma and Stress Specialist Centre, Ms Sachse, to give evidence of her consultations with, and knowledge of, the appellant upon whom she had reported. The appellant commenced her cross‑examination at some time a little after noon on that day and she was still cross‑examining when the court adjourned for the day, at which time she wanted to further cross‑examine Ms Sachse on a particular topic.
Ms Sachse was recalled for that purpose after the luncheon adjournment on 23 July, but the cross‑examination floundered and the appellant did not pursue it by testing the witness in the area with which she was supposed to be dealing. After some time, the magistrate said that because she was not pursuing cross‑examination in the area agreed in a proper way, he would bring the cross‑examination to an end, a decision which the appellant refused to accept. She argued and would not desist when warned that she should sit down and be quiet. Again, she made allegations that in her view, her participation in the trial was stultified whenever she came to something important to her case, or which it appeared might expose a weakness in the respondent's case. Because she would not comply with the magistrate's ruling, his Honour told her that she was ejected.
The appellant asked if she could hear the cross‑examination of Ms Sachse by another party. The magistrate told her that that would not be allowed. But there is a rather farcical quality to what then occurred, because it seems that the witness required a comfort break. When she returned to the courtroom, the appellant was permitted to return with her and the child representative for T and J commenced her cross‑examination. The appellant constantly interrupted this process, interjecting that Ms Sachse was lying. She was warned to desist on a number of occasions. Finally, the magistrate ejected her from the courtroom. As she went, she said that the court did not want to hear evidence. She believed it was 'a corrupt case and the outcome was predetermined long before this case started' because the court would not listen to anything in her favour (23 July 2009, ts 112).
The cross‑examination was not concluded when the court adjourned for the day, at which time the appellant was permitted to return to the court and participated in the proceedings and planning for the following day. When proceedings resumed on 24 July, the appellant again constantly interrupted the cross‑examination and re‑examination of Ms Sachse, calling out to inform the court that the witness was 'lying'. Again she was warned a number of times that she must be quiet and desist from that behaviour. She failed to do so, and was ultimately ejected. As she went, she conceded that her behaviour had been 'inappropriate' but, she added, 'It is true. She's lying.' (24 July 2009, ts 26).
Dr Dear was appointed by the court under the statutory power to which I have already referred, as a clinical psychologist. He was attached to the School of Psychology and Social Science at Edith Cowan University. He had prepared a number of reports. When he was called to give evidence on 16 November 2009, it was by the child representative for S. His evidence‑in‑chief occupied most of the afternoon of 16 November and a substantial portion of the following day. A witness was interposed and the cross‑examination of Dr Dear by counsel for the respondent, commenced on the morning of 18 November when the court resumed at just after 9.00 am. That cross‑examination concluded after just over an hour. The cross‑examination by the other child representative concluded at about 1.00 pm.
Ms Bromley, the Principal of Clarkson Primary School, was then interposed. She was called by the child representative for S and her evidence concluded at about 4.15 pm. Dr Dear was recalled to be cross‑examined by the appellant in relation to the evidence that he had given on the respondent's application that S be permitted to leave the jurisdiction and travel to Germany. I have mentioned this already. On 19 November 2009, after hearing evidence, his Honour the magistrate, dismissed this application. However, on 18 November, after cross‑examining Dr Dear for some time, and at just before 6.00 pm, the appellant again ran into difficulty.
Her cross‑examination was repetitive. The magistrate warned her on no less than eight occasions that he would limit her time for cross‑examination. Finally he told her that her time was up. She refused to accept that ruling and continued to argue with the magistrate. She was removed from the courtroom, but again that was after there had been discussion about arrangements for the following day. The process seems to have been employed by the magistrate as a means of bringing argument by the appellant to an end when no other measure would suffice. There seems to have been nothing which might support a conclusion that the process was productive of any injustice.
The appellant seemed to be incapable of being guided by the court as to the proper process to be employed in participating in the trial. Occurrences in December 2009 provide typical examples. On 8 December the appellant was represented by her lawyer, Mr Meredith. Counsel was cross‑examining Dr Veltman, the consultant psychiatrist who had in fact been the appellant's psychiatrist. The appellant constantly interjected, expressing her disagreement with the evidence of Dr Veltman as to what the appellant had said to her and matters of that kind. Again, the magistrate attempted to stop this process by warning the appellant that she must be quiet. The appellant continued in the same vein and she was ultimately ejected from the courtroom. As she left, she observed, 'That's fine. I don't like hearing such lies anyway. It's bullshit.' (8 December 2009, ts 109).
On 14 December 2009, while represented by counsel, the appellant called Dr Louw, a consultant psychiatrist who had been involved in her treatment. At the conclusion of her cross‑examination, when re‑examination was invited, the appellant said that she would do the re‑examination. The magistrate informed her that as she was represented, counsel would do the re‑examination. Counsel's services had not at that stage been terminated and he declined to withdraw, obviously believing that it would be improper for him to do so. The appellant refused to accept the magistrate's ruling that counsel should continue to perform his ordinary function to re‑examine the witness. She argued and was finally ejected.
On 15 December 2009 when the court commenced, his Honour's attention was drawn to the extraordinary situation that the appellant was ostensibly appearing in person but her counsel, Mr Meredith, was sitting outside the courtroom in the foyer because he had been instructed to do so, although his services had not been terminated. The appellant, however, conducted the cross‑examination of Dr Dear in relation to the substantive applications commencing shortly after 10.00 am. She was given an hour to cross‑examine, a direction which she ignored. When she was told that her time had expired, she argued the point with the magistrate, although she was warned to resume her seat and cease the argument. Ultimately, she was ejected from the courtroom.
I have identified, I think, the occasions when the appellant was ejected from the courtroom. They are few, having regard to the length of the trial and it seems to me that there is nothing to support the proposition that the process employed was unfair or prejudiced the appellant in exercising the capacity to present her case and test the evidence adduced by the other parties. This device was employed by his Honour as a measure of last resort when the appellant refused to abide by the rulings of the court and continued despite warnings to disrupt the proceedings.
His Honour's obligation to conduct a fair trial did not only involve consideration of the interests and wishes of the appellant. The other parties deserved consideration and his Honour was obliged to tread the difficult path of accommodating the interests of all parties when the appellant seemed to be focused entirely upon what she perceived to be her own interests.

The refusal to allow the appellant to call witnesses

I have mentioned the terms of s 13 of the MCA and the general guidance given to the court in dealing with cases. I have mentioned that s 16 of the MCA provides a large number of specific powers which may be exercised by the court for the purposes of controlling and managing cases and trials. Among them is s 16(1)(p) which provides that the court may:
by order, limit -
(i)the time a party has at trial to examine, cross‑examine or re‑examine a witness, or to make oral submissions, or to present its case;
(ii)the number of witnesses (including expert witnesses) that may be called in relation to an issue;
(iii)the length of a trial;
It is clear, because his Honour refers to the provision from time to time, that the magistrate was conscious of his exercise of this power, both in respect of his decision about the witnesses who might be called by the appellant and the limitations of time which he imposed upon her on occasions, particularly in relation to her cross‑examination of witnesses.
As to the issue of witness summonses, r 71 if the Magistrates Court (Civil Proceedings) Rules 2005 (WA) provides for the court's control of the process of summoning witnesses by requiring a party who wishes to have a person give evidence or produce evidentiary material at a trial to lodge a request for the court to issue a witness summons. There is an approved form, and the rule provides for personal service, with the tender of conduct money in the traditional way.
It appears that initially, on the appellant's application, the court issued 93 witness summonses. It was then deluged with applications by people served to be excused from attendance. It appears that all had been summonsed to attend on the first day of the hearing. On 20 July 2009, the magistrate raised this matter with the appellant and asked her to provide him with a list of witnesses so that decisions could be made as to when they might be called (20 July 2009, ts 39 ‑ 40, ts 77 ‑ 79). As matters developed, it became clear that his Honour would decide, once the appellant listed those people whom she wished to call, which of them might be summonsed (22 July 2009, ts 29 ‑ 30; 24 July 2009, ts 104 ‑ 107).
It is not clear quite how the matter developed in relation to the summoning of witnesses, but I have already mentioned that, on my count, the appellant adduced evidence from some 38 people and gave evidence herself. Having read that material, I must say that much of it would have been of little assistance to the magistrate in resolving the relevant questions upon the respondent's applications.

Having regard to the terms of the CCS Act, s 28, those questions were whether all or any of the children had suffered, or were likely to suffer, harm as a result of physical abuse, emotional abuse, psychological abuse or neglect, and whether the appellant had not protected the child from such harm, or was unlikely or unable to protect the child from further harm of the relevant kind. In this case, as has been noted, the applications were made upon the basis that the appellant had caused, or materially contributed to, harm of the kinds alleged being suffered by each child.
The appellant wished to answer that allegation by denying it. She called a substantial body of evidence which was concerned to establish the nature of the relationship between her and the children, particularly S. Much of that evidence was necessarily of little persuasive power, being given by people who, in particular circumstances, had observed the children, the way in which they interacted with each other and the way in which they interacted with their mother and her treatment of them. That was negative evidence which, of course, was unable to support any direct challenge to the incidents relied upon by the respondent in support of the applications before the court.
Further, the appellant wished to adduce evidence directed to establish the proposition that no order should be made, on the ground that foster placements often exposed children to harm of the kind which the making of an order was supposed to prevent. This, of course, would take the evidence well outside the objects of the enactment of the CCS Act and the general principles contained in ss 7 ‑ 10 of the Act to which, so far as material, I have referred when discussing the general nature of the protection proceedings.
A number of instances where the magistrate refused to hear evidence are relied upon by the appellant. In some cases, his Honour apparently deemed the evidence‑in‑chief of a witness to be of such limited assistance that he declined to permit cross‑examination or, more strictly, he indicated that cross‑examination would not provide him with any material assistance in dealing with the applications.
The contention of the appellant is that a miscarriage of justice arose out of the magistrate's refusal to allow her to call witnesses who were available and could have given relevant evidence. Grounds 1 and 2, as particularised in this regard, do not address the power of the magistrate and, indeed, his duty under the MCA, s 13 and s 16(1)(p)(ii), to limit the number of witnesses to avoid unnecessary repetition of evidence.
One case relied upon by the appellant is that of Ms Pritchett. The appellant proposed to call her to give evidence about the existence of a paedophile ring preying on children in foster placements. In his reasons for decision, [5] ‑ [7], his Honour refers to the appellant's belief that the respondent uses foster placements to procure children for the use of paedophiles among judges and magistrates. The appellant believed that his Honour, the presiding magistrate, was a member of that paedophile ring. Ms Pritchett was apparently to be called to give evidence concerning 'the existence of paedophile rings in Perth'. His Honour declined to permit her to be called to give such evidence.
One of the appellant's witnesses was Ms Harries. She was a research fellow in the School of Social Work and Social Policy at the University of WA. On 16 December 2009, Mr Meredith led her in evidence about her research into the impact of the removal of children from parental care and their placement in foster care. Her evidence did not directly, or at all, relate to the children the subject of the applications before the court, but was concerned with possible detriment in relation to children placed in foster care generally.
On 17 December, the appellant, now acting in her own behalf, sought to recall Ms Harries on the basis that she wished to adduce further evidence from her, evidence she said had been overlooked by Mr Meredith, who was apparently 'unbriefed' and unprepared to adduce the evidence. His Honour declined to allow the witness to be recalled. There is no indication that her evidence would, if her recall had been permitted, have been materially different from that she had given on the previous day.
The appellant sought to adduce similar evidence from Dr Briggs on 17 December 2009. Dr Briggs is a professor in child development at the University of South Australia. She came before the court by way of a telephone hook‑up to her office at the university. The magistrate asked what evidence she might give. Dr Briggs explained that she had had some email contact with the appellant, but otherwise had not met her, had not met the children and knew nothing of the case. Her evidence, she said, would have been concerned with the possible impact of the removal of children from the care of their mothers and the effects of placing them in foster care. His Honour declined to admit that evidence, correctly, in my view, observing that it could not assist him to resolve the case before him.
Matters in relation to the calling of witnesses by the appellant rather came to a head on 21 December 2009. The appellant says that Mr Painter, a friend who knew her and her relationship with the children, was not able to be called because she was prevented from doing so. In fact, it seems that Mr Painter was overseas in Uzbekistan. Efforts had been made to raise him on a telephone link on 17 December. Those efforts were unsuccessful.
Further efforts of that kind were made on 21 December. The court officer telephoned the international number which the appellant had provided. She reported that when the number was telephoned, the number was said to be 'temporarily unavailable', presumably because the telephone service was switched off or temporarily out of range. In the end, Mr Painter was not called, simply because, on each occasion when an attempt was made to hear him, it was unsuccessful.
The appellant also relies upon the magistrate's refusal to allow her to call a Ms Gould, a family friend who, when asked what she would give evidence about, the appellant said she was to give evidence about, 'the whole of my past life' (21 December 2009, ts 68).
A witness not mentioned in the schedule provided to me by counsel for the appellant, but who was sought to be called and was discussed on 21 December 2009, was a Ms Clarke, a person apparently connected with an agency which works with families with mental health issues, providing support for the family in a way which may enable it to function despite one or more members of the family having mental health problems. There was no suggestion that Ms Clarke was to give other than general evidence of that kind. There was no suggestion that she had done any work with the appellant and her children in a way which might engage the no‑order principle expressed in s 46 of the CCS Act. The magistrate declined to hear this evidence, and the appellant went into evidence as the last witness in her case.
For completeness, I should add that among the witnesses who were called were a number of people who knew something of the family in various situations as friends, schoolteachers, one of the appellant's flatmates, family daycarers, ministers of religion, a soccer coach for one of the children, a scout leader and cub leader, people involved in teaching S archery, a person involved with a church playgroup attended by the children, and even an officer of the St Vincent de Paul Society who became involved with the family when they required assistance. Finally, there were others who were said to fall within that general category of witness, and his Honour declined to hear further such evidence.
In some cases, the evidence of witnesses of this kind spoke of matters of fact as if they were matters within their personal knowledge. However, under cross‑examination, in some cases it emerged that the court was being told things that the appellant had told the witnesses, evidence which was deprived of weight when the magistrate formed the view that the appellant was a person without credibility.
In the result, neither her evidence nor the evidence of witnesses of this kind was accepted by his Honour without corroboration: judgment [4]. In the final analysis, I can detect no unfairness in the fact that the magistrate declined to accept the evidence of witnesses which might, at best, have only marginal probative value or was repetitive.

Time limits and interference with questioning

The grounds of appeal allege that the trial miscarried because of 'unreasonable' time limits and 'undue and persistent interference' with the appellant's examination of witnesses and cross‑examination.
I have referred to the appellant's lengthy and often hostile cross‑examination of Ms Norton, the senior social worker with the DCP in Joondalup. In relation to this witness, and the departmental witness Ms Nicholson, the magistrate generally refrained from interfering with the cross‑examination. He declined to interfere at times, although counsel objected, for the reason that he appreciated that the appellant lacked any legal training and was doing the best she could to test the evidence which was led.
However, ultimately, at the end of the day's proceedings on 23 July 2009, when his Honour explained to the appellant that he had interfered on occasions simply because the process of cross‑examination was not useful, the appellant responded with a tirade that the court had not been supportive and had not recognised the grief of a mother who faced the prospect of losing her children, and that her lawyer was effectively running dead and not properly preparing the case because, 'he is going to work for your chambers' (23 July 2009, ts 125).
As to the imposition of time‑limits, I have mentioned the terms of the MCA, s 16(1)(p)(i), I do not propose to refer, in any detail, to particular time‑limits. In my view, nothing has emerged in the presentation of this appeal to establish that, to the extent that time‑limits were imposed, that was done unreasonably.
The imposition of a time‑limit sometimes preceded the appellant commencing to question the witness. I have been able to detect no unfairness when that was done. Alternatively, usually after lengthy and repetitive questioning in cross‑examination, after the magistrate had urged that the appellant should bring the process to a close, on a number occasions he would do so finally by telling the appellant that her time to question the witness had expired. In my view, every latitude was allowed, but the magistrate also struggled to keep the proceedings moving, as the legislation had directed he should.
Because of the content of particular (e) to ground 1, I should say something about the questioning of Dr Dear, the court‑appointed clinical psychologist. He commenced to give evidence on 16 November 2009, at about 3.20 pm. The court adjourned at about 4.30 pm. Proceedings commenced again on 17 November, at shortly after 10 am. At the conclusion of his evidence‑in‑chief, at about 3.30 pm, Dr Dear was released until the following morning, to enable a witness to be interposed. As I have already mentioned, the proceedings recommenced on 18 November, at about 9 am. Counsel for the respondent concluded his cross‑examination after a bit over an hour. Cross‑examination by the child representative who had not called Dr Dear concluded at about 1 pm.
A witness was interposed and the appellant commenced her cross‑examination at about 4.15 pm. The cross‑examination was to be in relation to the evidence given by Dr Dear in connection with the respondent's application that S be permitted to leave the jurisdiction and travel to Germany. I have mentioned the repetitive cross‑examination which ensued and the ultimate action of the magistrate to bring that to a close when the appellant would not otherwise be instructed to progress the matter.
It seems that Dr Dear was not recalled for the appellant to continue cross‑examination on the evidence given by him generally until the morning of 15 December 2009. After some time during which the appellant questioned Dr Dear about his curriculum vitae, item by item, there was an objection that the cross‑examination was pointless. It will be recalled, of course, that this was a court‑appointed expert, the admissibility of whose evidence was secured by statute.
The magistrate sought to move the appellant on to substantive matters by telling her that her cross‑examination of Dr Dear would now be limited to an hour. When the hour expired, the magistrate told the appellant that her time was up and he stopped the cross‑examination. The appellant protested and continued to argue the point until, as I have already mentioned, the appellant was ejected from the courtroom.
There was then discussion by the magistrate with the child representative for S about whether she might introduce further evidence of recent developments involving the appellant which, I gather, were said to have occurred since the November sitting and which were thought by counsel to be potentially material to the decision of the case.
His Honour took a different view, saying, having regard to the statutory provisions, that he was concerned that the case was going on and on when it was in the best interests of the children that the applications be finally resolved. His Honour expressed the view that no doubt there could be new developments on a daily basis. He thought he would not be assisted by further evidence of the nature under discussion. Counsel acting as the child representative for S closed her case which, in the event, then brought the court to the appellant's case.
His Honour then made what seems to me to be, with respect, the foolish remark which is the subject of particular (e) of the appellant's ground 1. He said it was time for the appellant to go into evidence, but there was nobody there. And so that would seem to be the end of the case, resulting in an invitation to the other parties to present their closings submissions (15 December 2009, ts 53 ‑ 57).
Happily, counsel dissuaded his Honour from maintaining that view. The magistrate said that he appreciated that there was a need to permit the appellant to present her case and, as has been seen, that process was then commenced, Mr Meredith again appearing, and numerous witnesses were called. I should say, however, that the appellant attempted to have a witness summons issued to recall Dr Dear, but the magistrate, having excused that witness from further attendance, declined to permit that course to be taken.
It seems to me that the magistrate's concern to keep the hearing of the applications moving to enable the expeditious resolution of the children's position was a proper focus in proceedings of this kind which had already been of a particularly protracted nature. His Honour was undoubtedly keen to preserve the appellant's capacity to participate in the process, but he required her to do so without waste of time. The view that she was wasting time in her cross‑examination of Dr Dear was reasonable.
In view of the way she was proceeding, it was not unreasonable to limit the time for her cross‑examination to an hour. Perhaps if she had been dealing effectively with substantive matters, she would have been in a position to submit that she should have an extension of time to put particular matters upon which she wished to test the evidence of the witness, expressed as it was in reports to which she had had access for a considerable period. Dr Dear's main report, exhibit CR1D, is dated 4 May 2009, and his two further reports, exhibit CR1E and exhibit CR1F, are respectively dated 21 October 2009 and 16 November 2009.
It is not put, on this appeal, that there is anything to show that, had it been possible to further cross‑examine Dr Dear or to recall him, the appellant may have elicited the expression of an opinion contrary to the reports or more favourable to the case of the appellant than was expressed in the reports.
Turning specifically to the question whether the events discussed above reveal a reasonable perception of bias on the part of the magistrate, I think the ground must fail. There is nothing in what occurred capable of supporting a reasonable suggestion that the behaviour of the magistrate showed that he had taken a set against the appellant or that he had already prejudged the case. In the final result, it seems to me that neither ground 1 nor ground 2 of the appeal 1002 of 2010 are made out. I would grant leave, but would dismiss those grounds.

The sufficiency of reasons

Ground 3 raises the proposition that the magistrate erred in law in failing to give reasons adequate to enable a proper understanding of the basis for his conclusion that each application should succeed because each child was in need of protection.
It is well accepted that the failure to give reasons adequate to explain the basis upon which the court's decision has been made may itself constitute a ground of appeal, particularly if the inadequacy of the reasons tends to negate the efficacy of the appeal process. The reasons need not be lengthy or elaborate, particularly in a case like this where the nature of the application and the statutory direction to decide the matter expeditiously may affect how complete the reasons need to be.
The law is, with respect, well encapsulated by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273, in the judgment of the court, 283 [27].
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
It should be said that in this case, as I have already observed, there were elements of credibility and the court's preference to accept one body of evidence over another. In addition, it was necessary to have regard to the statutory test as to when a child was in need of protection and the manner in which the court was satisfied, to the requisite standard, that that had been proved with respect to each of the appellant's children.
As will appear from my discussion of ground 5, I conclude that the basis upon which the magistrate made his decision, in the case of each application, is made sufficiently clear in the extensive reasons which his Honour provided very shortly after the hearing of the case was concluded. I do not uphold, and would not grant leave, in respect of ground 3. On that basis, ground 4 falls by the wayside. Ground 5 is the important ground which will now be dealt with in these reasons.

The sufficiency of the evidence to support the findings and orders made

Ground 5 in SJA 1002 of 2010 raises the general proposition that the evidence does not support the exercise of discretion to make a protection order in respect of each application and each child. The ground does not distinguish between the applications. It raises the blanket contention that the evidence was insufficient to support the exercise of the discretion in each case.
I have discussed the nature of the protection proceedings and expressed the view that the fact that a discretionary judgment was to be made is made clear by the statutory scheme, in particular s 46 of the CCS Act which enacts the no order principle, but at the same time reinforces the application of the objects of the Act set out in s 6.
The court's judgment must self‑evidently be exercised having regard to the principles set out in the legislation and in particular to the paramount consideration in s 7 of the CCS Act, that the court, in exercising a power under the Act, is to regard the best interests of the child as the paramount consideration determined by having regard to the various matters set out in s 8(1). I have already set out in this judgment those matters in s 8(1) which I would regard as being particularly material to the exercise of discretionary judgment in this case.

In addition, as I have noted, the Children's Court was set free from the ordinary demands of formality and legal form and the court was not bound by the rules of evidence, but could inform itself in any manner it considered appropriate: CCS Act ss 145 and 146. The standard of proof to be applied in the protection proceedings was proof on the balance of probabilities: CCS Act s 151.
It is well then, that I should start my consideration of the matters raised in ground 5 by setting out in summary form the requirements of the CCS Act s 28 for the determination of the fundamental question that each child was in need of protection. I have already set out the terms of s 28 relative to this case and the findings of the magistrate, and I need not quote the terms of the provision again.
Before giving consideration to the no order principle in finally making the decision whether a protection order was required to be made in each case, the magistrate had to find that it was more probable than not -
(1)that the children had suffered or were likely to suffer harm, defined as any detrimental effect of a significant nature on the child's wellbeing. It should be noted that the concept is a broad one (I would think deliberately so) and harm need not in fact have been suffered if, at the time when the judgment was to be made, it was likely that such harm might be suffered. In other words, the Act is written in terms which enable intervention before harm actually occurs;
(2)that the harm suffered, or likely to be suffered was, or would be a result of abuse of any or all of the types specified, and/or neglect; and
(3)that the responsible parent, in this case the appellant, may or may not have caused the harm or likelihood of harm to arise, but had not protected or was unlikely to protect, or was unable to protect the child from harm as at the date when the judgment was to be made, or from further harm in the future.
The concepts involved are flexible. While the Act as a whole imports a discretionary judgment and requires the court to refrain from acting unless satisfied that a protection order is required in the best interests of the child, it is written in such a way as to permit the court to act where necessary to prevent the occurrence of likely future harm where it is judged that the necessary protection for the child has not been, is unlikely to be, or is unable to be provided by the parent or parents.
Further, in this case it is to be noted that a substantial part of the process by which the magistrate decided what evidence, including expert evidence, he would accept and what he would not consider to be reliable, was based on the demeanour of witnesses and the content of their evidence, sometimes demonstrating bias on the part of a witness and hence unreliability which precluded acceptance of the evidence. I have already mentioned, for example, that in his Honour's reasons, he makes an adverse judgment of that kind about the appellant, whose evidence, he says, he does not accept. It was clearly open to his Honour to reach that conclusion.
So far as I am concerned, I should respect such a conclusion and allow it to have effect in considering the appeal and the proposition that the evidence did not support the making of the orders which resulted from the protection proceedings, unless there is something in the material before the court which shows that, despite the advantage possessed by the court at first instance and denied to the appellate court, of being able to see and hear and weigh the content of the evidence of the witnesses, the decision of the court of trial about the credibility of witnesses or any witness, was for any reason clearly erroneous. A more detailed exposition of the law in that regard is to be found in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at 126 ‑ 129 [24] ‑ [30] and per McHugh J at 146 ‑ 147 [90].
I have discussed the nature of the appellate process. The appeals are by way of rehearing on the materials before the Children's Court, so far as they were accepted by the magistrate, supplemented by additional evidence admitted on an appeal, as occurred in this case in respect of reports by the psychiatrist, Dr Fischer and the psychologist, Mr Brewer. As the High Court makes clear in Fox v Percy and numerous other cases, subject to the limitations to which I have referred above, inherent in the position of the appellate court, that court must independently review the evidence before the court of first instance.
In a case of this kind, where the relevant ground of appeal, ground 5, raises alleged factual error, or the miscarriage of discretionary judgment, on the basis that the decision is unsupportable having regard to the evidence, the appellate court, while respecting the judgment of the court of trial, must not shrink from overturning that judgment where its independent assessment shows that that is required.
I observe in passing that the same approach is required of an appellate court when it has before it a ground of appeal expressed in the terms of ground 5 in a criminal case, in respect of which the structure of the statutory provisions in respect of an appeal by way of rehearing, is the same: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 per French CJ, Gummow and Kiefel JJ at 575 [11] ‑ [14]. I note that in this case, the contention made by ground 5 is that the evidence (I would interpolate, accepted by the magistrate) did not support the findings made and, even if, contrary to that contention, those findings were open, they would not support the exercise of the discretionary judgment to make a protection order in each case.

The magistrate's findings and the evidence relied upon

His Honour commences his judgment, appropriately in my view, with a detailed discussion and review of the evidence concerned to provide details of the appellant's contact with, and behaviour towards, various medical authorities since her arrival in Australia with the child S, on 8 January 2000. The judgment discusses the birth in Australia, firstly of T, on 8 December 2003 and then J, on 25 October 2006. His Honour refers to constant visits to doctors and hospitals, attempting unsuccessfully to obtain medical diagnoses for the children.
The appellant's behaviour appears only to have changed for the worse when she moved from Margaret River to Perth after J's birth in the latter part of 2006. In his Honour's judgment at [76] ‑ [78], he expresses the view, which seems to me to be well merited on the evidence, that the appellant has been, and is inclined, to engage, 'in what can only be described as all out war with any agency or individual who she perceived as standing in her way.'
A number of witnesses spoke in evidence accepted by his Honour, of the appellant's serious allegations against them and threats towards them, including officers of the respondent. The behaviour included threats to kill. Because of what she said, there were concerns that she might harm the children. The children were briefly taken into care at the end of 2006.
The appellant was remanded on a hospital order to Graylands Hospital for assessment. She was there seen by the psychiatrist, Dr Schineanu, who reported that there was no evidence of mental illness or personality disorder. His Honour the magistrate thought that conclusion was wrong and on the evidence, I would have to agree with him.
Arising out of these events which caused the children to be in care only briefly, the magistrate made the following findings:
This sequence of events had a number of consequences. [The appellant] later alleged that during his 17 days in care, [S] was sexually abused. She maintains that belief to this day. She also alleged that the circumstances of his apprehension led to [S] suffering from post traumatic stress disorder, another belief that she maintains to this day. There is no evidence to support either of those claims. I find as facts that both of those claims are not true. [S] was not and has never been sexually abused by his carers. As a result of those beliefs, [the appellant] has caused [S] to be unnecessarily examined by numerous health professionals in trying to prove that her beliefs are true. This is not dissimilar to [the appellant's] earlier attempts to have [S] diagnosed with gastrointestinal problems. I find that [the appellant's] actions in causing [S] to be unnecessarily examined amounted to causing him psychological harm [82].
In the same way, [the appellant] has caused [T] to be unnecessarily examined by health professionals, so as to amount to causing psychological harm to him. PMH has a file on [T] from March 2004, part of exhibit BE. It runs to December 2008, and is several centimetres thick. She first took him there saying that he had been injured in a motor vehicle accident on 27 February 2004, and had fallen out of the car's baby carrier in the course of that accident. What followed was a four year history of countless trips to the hospital, with [the appellant] seeking a diagnosis that [T] had suffered a head injury. PMH accepted the factual basis put forward by [the appellant] that there had been a motor vehicle accident as a beginning point for their medical investigations. There is nothing on the PMH file to indicate that [T] ever suffered a head injury. As Ms Sachse said in evidence, [the appellant] is a pathological liar, an opinion I accept in its entirety. It is also my opinion, independent of any expert evidence on the point, that she is a pathological liar [83].
His Honour went on to refer to the enrolment at the beginning of 2007 of S in the Kingsway Christian College but, as he observed, in 2008 child protection concerns surfaced again because, as his Honour found, with justification, the appellant was throughout 2006, 2007 and 2008, embroiled in legal actions and disputes which caused her to neglect the children: judgment [85]. His Honour went on to accurately detail a summary of the evidence which supported the conclusion that the appellant's obsessive and excessive attention to the disputes had the result that, by the latter part of 2008, just before the applications heard by the court commencing in May 2009, the appellant had obviously reached the end of her tether.
She was relying on the oldest child S to take care of his brothers and there were indications of ill‑treatment. A neighbour gave evidence, accepted by the magistrate, that J, the youngest child, who would at the relevant time have been aged about 2 years, was left for extended periods in the appellant's car parked at her residence, sometimes in hot weather, sometimes screaming and in obvious distress. His Honour concluded, and in my view the evidence supports the view, that this was the result of actions by the appellant to remove from the house the disruptive influence of this small child, a process which the magistrate found caused physical harm to the child: judgment [90] ‑ [93].
His Honour goes on to summarise evidence concerning the oldest child S, who, not terribly long before the trial, and when the child was not yet 10 years old, was being overwhelmed with parental responsibilities by his mother. When he failed to measure up, he was physically punished and deprived of food. He was threatened to the point that he was in fear of his mother. S was not the only recipient of physical ill‑treatment. There was evidence of such behaviour by the appellant towards T, who would, at the time have been perhaps about 5.
There is a useful discussion of these matters by his Honour in his judgment at [94] ‑ [100]. The events discussed lead up to the latter part of 2008. His Honour concludes that the appellant has caused emotional and psychological harm to S and there is strong evidence to support that conclusion. I need only refer to the accurate discussion of these matters by the magistrate and add that there is evidence of harmful behaviour by the appellant, not only towards S, but towards the children generally.
His Honour reviews evidence which shows harmful behaviour by the appellant, particularly concerning S, over a period of time, including a reference to events involving S at the school that he was attending, in respect of which I also heard evidence on 21 December 2009, when dealing with an application by the appellant to stay the proceedings before the Children's Court, pending their transfer to this court: PVS v Chief Executive Officer, Department for Child Protection [2009] WASC 406.
In that case the appellant relied upon evidence of bad behaviour of a serious kind by S in support of the application. An incident which involved quite substantial damage to a DCP vehicle when S was taken to have a visit with T and J, was witnessed by Dr Dear, whose evidence was that he heard S say that his behaviour on that occasion in damaging the car, was what he was instructed by his mother to do.
The point is of course, that there is support in the evidence for the conclusion reached by his Honour that the appellant's behaviour towards S over a period of time had caused him serious harm, described by Dr Dear by way of a diagnosis of oppositional defiance disorder: judgment [105] ‑ [109].
At [110] ‑ [116] his Honour discusses repeated allegations by the appellant that S had been sexually abused while in foster care, allegations which his Honour found were unsupported by evidence and, 'undoubtedly false'. But, of course, as his Honour found, to have S examined by doctors and interviewed by police in the course of the investigation of such allegations, resulting from her statements to the police, amounted to psychological abuse of S by the appellant.
The magistrate discusses in his reasons, his reaction to the evidence given by witnesses called by the appellant during the course of the protection proceedings. His Honour accepted the evidence of some of these witnesses, but observed that they were not presented by the appellant with the full picture of her interaction with the children and the danger she presented to them. Other witnesses gave accounts which his Honour, as I have mentioned, rejected on the ground of their evident bias in favour of the appellant, their uncritical acceptance of what she told them and an evident agenda to attack the respondent department and its officers for their involvement with this family.
The psychiatrist, Dr Louw called by the appellant, gave evidence in her favour, disagreeing with the opinions expressed by the psychologist, Dr Dear, and the psychiatrist, Dr Veltman. The magistrate rejected the opinions expressed by Dr Louw. His approach to making this decision involves no misuse of his decision‑making obligation and nor is any such failure to have proper regard to the evidence alleged.
His Honour returns to a reliance upon the opinion of Dr Dear in relation to the prognosis for the future so far as the appellant is concerned. Dr Dear's opinion that the appellant suffers from a narcissistic personality disorder of an extremely complex kind, was accepted by the court below and there is no basis in my view upon which I would be entitled to find that the magistrate fell into error in that regard.
The consequence is that the sufferer of the disorder is very self‑focused, with grandiose ideas and opinions of self‑worth. All goes well while that perception is not challenged and is constantly reaffirmed, but any serious challenge will produce extreme anger and an overwhelming focus upon the need to attack the challenger.
While things go well, the appellant, in Dr Dear's view, is able to function effectively and appropriately as a parent, in a way which is not productive of harm of the kinds described in the CCS Act s 28. On the other hand, when the sufferer in the appellant's position, is not functioning well psychologically, her lack of control of her emotions and behaviour is likely to reduce her empathy towards the children and cause her to behave towards them in a way which may well be productive of harm of the kinds described in s 28.
Other significant evidence accepted by his Honour the magistrate, was that given by Dr Veltman, who was consulted by the appellant as a treating psychiatrist during the course of the proceedings, so that the opinions expressed were entirely contemporaneous with them. Dr Veltman's diagnosis was that the appellant suffered from bipolar affective disorder, a diagnosis consistent with Dr Dear's opinion that she suffered from a narcissistic personality disorder. Dr Veltman was described, in a reference to her demeanour and her behaviour while giving evidence, as an impressive witness who exhibited a high degree of professionalism. Dr Veltman expressed the view that ultimately, without the children and if treatment can be successful, the appellant might be brought to a state where her condition improves to the extent that she could resume the care of the children.
But her evidence supported the finding criticised by the appellant in ground 5, that the appellant, 'will not have any significant period of stable psychological functioning in the future.': judgment [133]. In my view, on the evidence accepted by his Honour, there is strong support for that view, particularly as, in this portion of his judgment, his Honour relies upon the appellant's lack of insight into her condition and unwillingness to accept treatment (on the basis that there is nothing wrong). Obviously, if those attitudes could be changed, the position might be different.
I note, when considering this aspect of the case, that Dr Veltman also made a diagnosis of post traumatic stress disorder and against that background, I turn to consider the new evidence which I accepted on the hearing of the appeal, in the form of reports by the psychiatrist, Dr Fischer and the psychologist, Mr Brewer. I received these reports into evidence on the hearing of the appeal over the opposition of the respondent, on the basis that they might materially affect the outcome of the appeal and cross‑appeal in connection with the likely future capacity of the appellant to be able to protect the children from harm of the kind found by his Honour the magistrate. I offered the respondent the opportunity to have the witnesses called for cross‑examination, but I was advised that that was not required.
I will start with Mr Brewer who was first consulted by the appellant and who referred her for assessment and treatment to Dr Fischer.
Mr Brewer first saw the appellant shortly after the magistrate made the orders and published his reasons in the protection proceedings. He found that she was experiencing acute post traumatic stress disorder, as I interpret the reports, related to the loss of custody of her children and to her self‑representation and conduct of legal proceedings. In his second report dated 4 March 2010, Mr Brewer observes (without expressing disagreement with the opinion offered by Dr Dear), that he is 'satisfied with [the appellant's] therapeutic progress to date, and am optimistic for her recovery.'
Mr Brewer reported at more length upon the appellant's state in a report dated 2 June 2010. In that document he firmly concludes that she is suffering from post traumatic stress disorder resulting from her traumatic apprehension, the seizure of her children by police and her separation from the children as a result of interim and final protection orders. Mr Brewer expresses the view that while, on testing, the appellant displays elevated scores on the histrionic personality features, obsessive compulsive personality features and narcissistic personality features scales, that elevation did not constitute a personality disorder.
Mr Brewer appears now to disagree with the opinion proffered by Dr Dear and accepted as consistent with her diagnosis by Dr Veltman. For myself, I would not consider that this material provides a clear basis to reject the basis of expert opinion accepted by the magistrate and grounding his orders. Indeed, Mr Brewer appears to accept that the appellant displays the characteristics of behaviour described by Dr Dear as supporting his diagnosis. He says:
Her impaired ability to monitor and regulate tone and volume of speech and sudden aggressive outbursts has no doubt caused many people working with [the appellant] to withdraw or become defensive and engage in a counterproductive relationship.

In my view, that rationalisation of the situation does not assist to explain away the diagnosis of a narcissistic personality disorder, but it appears that as at June 2010, despite treatment, the appellant continued to display the sort of characteristics discussed by the magistrate and to which I have referred above. Mr Brewer says that the appellant continues to receive psychological and pharmacological treatment for post traumatic stress disorder. He does not in this report repeat his optimistic view of the future to which he refers in the earlier reports.
Mr Brewer referred the appellant to Dr Fischer, the consultant psychiatrist. There are two reports made by him before the court. They are dated 14 June and 4 July 2010. In the first of those reports, Dr Fischer refers to information, a partial story and some of it not accepted by the magistrate, with which he had been supplied by the appellant. He speaks of discussions with Mr Painter.
It will be recalled that the Children's Court attempted to make contact with Mr Painter in Uzbekistan, but was unsuccessful. In the result, Mr Painter's evidence was not available to the Children's Court. I must say that Dr Fischer's detailed account of what was said about the appellant by Mr Painter describes a person completely different from the person found to be the appellant by the magistrate upon the evidence accepted by him.
Dr Fischer also describes the account of the appellant given by a Ms Gould, a friend who knew her before she emigrated to Australia. Again, it is a sympathetic description of the appellant's personality and characteristics. Dr Fischer in effect, in this report, says that if one accepts these accounts, it would support the conclusion that there is nothing wrong. In my opinion, as a psychiatric report, the document is extraordinary and provides no assistance.
The second report of Dr Fischer dated 4 July 2010, is in my opinion, equally lacking in utility. It discusses reports previously provided and in particular, Dr Fischer says he is asked to give his opinion on whether or not Dr Veltman's view that she was suffering from bipolar disorder, may be correct. He concludes that that opinion is likely to be incorrect, principally because Dr Schineanu did not express this opinion following the appellant's admission to Graylands in 2006. It will be recalled that his Honour the magistrate found Dr Schineanu's opinion to be unacceptable for reasons which he gave in his judgment, to which I think, exception may not be taken. Suffice it to say that I did not find the reports made by Dr Fischer to be of assistance in dealing with the issues raised on the appeal.
Having reviewed the available evidence accepted by the magistrate, I can see no basis to conclude that it was not reasonably open to his Honour to conclude, as he did in summary in his judgment at [134] ‑ [136], that each of the children was established by cogent and reliable evidence, to be a child in need of protection, because each had suffered harm as a result of physical, emotional and psychological abuse by the appellant. Although his Honour did not expressly say so, in my opinion the evidence also established that as at the date of judgment by his Honour, each child remained likely to suffer such harm.
There was in my opinion, overwhelming evidence, not only that the appellant had not protected the children from such harm, but that her conduct caused the situation where the children had suffered or were likely to suffer relevant harm.
Further, the evidence accepted by the magistrate, showed that the appellant was, at that time, unlikely and/or unable, because of her narcissistic personality disorder, to protect the children from further harm of the relevant kind. Nor, it must be said, does the evidence of Mr Brewer and Dr Fischer, in my opinion, change that prognosis.
I would grant leave to appeal on ground 5, but I dismiss that ground. It follows that the appellant's appeal, SJA 1002 of 2010, must be dismissed.

For how long should the protection order have been made?

This is the issue raised by the respondent's appeal, SJA 1003 of 2010. I have set out the grounds.
His Honour the magistrate explained his reasoning in his judgment at [137]. His Honour noted the power to which I have referred in s 45 of the CCS Act on a protection application for the court, if it finds that the child is in need of protection, to make the protection order sought in respect of the child (in each case a time limited order for a period of two years) or to make another protection order in respect of the child.
His Honour noted that the respondent referred for the first time in counsel's closing address, to the proposition that a protection order to age 18 should be made in each case and his Honour declined to take that course.
At [137] his Honour said that he would make the order in each case on a time limited basis for a period of two years. He said:
I do that because these are adversarial proceedings. Fairness to [the appellant] dictates that she should know what the case is against her, so that she can defend the case on that basis. It would be unfair on her to ask her, at the conclusion of all the evidence, to meet the case on a different basis. Were it not for that fact, I would have made protection orders until 18. The evidence supports the making of orders until 18.
I have previously set out the grounds of appeal. I need not do so again. The point is a short one and I take the three grounds together to express the proposition that his Honour, the magistrate, failed to consider properly or at all, having regard to the evidence and his findings, the question of the terms of the protection orders which he had concluded (rightly, in my view) were required in the case of each child. His Honour had a discretionary judgment to make about that question and in my view, it is clear from what he said in his judgment at [137] that his Honour failed to turn his mind to the exercise of that discretion, holding that it would be unfair to the appellant for him to do so. In that respect, in my opinion, his Honour fell into error.
I have discussed the relevant portions of the statutory scheme. Given his Honour's findings, the task before him had two stages to it.
The respondent's applications under the CCS Act s 44, were required to specify the type of protection order sought and in Pt 4 Div 3 of the Act, there are a number of choices offered. As has been seen, in each case the application was for a protection order (time limited) for a period of two years.
The question then for the court was firstly, whether the child in question was in need of protection within the meaning of s 28. If the court so decided, as it did in relation to each child in this case, giving a judgment which I would uphold, that decision was to be made and consideration of the exercise of the power to make a protection order was to be undertaken having regard to the best interests of the child as the paramount consideration: s 7. The court was to determine the best interests of the child having regard to the matters set out in s 8 and any other matters which were relevant and by the application of the guiding principles set out in s 9. As I have indicated, in my view, his Honour approached the task correctly.
Before deciding to make a protection order, having regard to the paramouncy of the best interests of the child, the court was to give consideration to the no order principle embodied in s 46. As I have held, it did so. The magistrate was then in the position that he had concluded that a protection order was to be made and the second part of the determination of the application in each case, was to be embarked upon. A decision was required as to the type of order which should be made. That decision was governed by the application of s 45 which is in the following terms:
45.Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
(a)make the protection order sought in respect of the child; or
(b)make another protection order in respect of the child.
That section makes it abundantly clear that the type of order was not limited by the type of order sought in the application and any party to that application must be taken to have understood that whatever were the terms of the application, an issue ultimately, if a protection order was to be made, would be the type of order which was appropriate in all the circumstances of the case.
His Honour, the magistrate, appears to have understood that that was so, because he expresses the view that the appropriate type of order in each case was an order (until 18) to be made pursuant to s 57 of the Act, an order which under s 59 would remain in force until the child reached 18 years of age, or until the order was revoked.
In my opinion, his Honour erred in failing to give consideration to the making of that type of order in each case, on the ground that these were adversarial proceedings and, in effect, that to give consideration to that type of order when the application was for a time‑limited order, would be to raise an issue for the first time which had not been litigated. As I have said, the type of order was always in issue and required to be addressed by the parties as well as by the court.
I grant leave to appeal in SJA 1003 of 2010 upon the grounds advanced. I allow that appeal.
Having done so, under the CAA s 14(1)(d) and (e), I may remit this aspect of the case back to the Children's Court to be further dealt with according to law, or I may substitute the decision which, in my view, should have been made by that court.
In my opinion, the latter is the appropriate course to take. His Honour the magistrate expressed his view. With respect, his conclusion was demanded by the evidence and the position in my view, remains unchanged after consideration of the reports made by Dr Fischer and Mr Brewer. The appellant unfortunately suffers, and it is clear that she has suffered for a considerable period, from a narcissistic personality disorder.
She is resistant to treatment because she disagrees with the diagnosis. That makes it very much more difficult, if not impossible, to achieve a remedy, whether by psychological treatment, pharmacological treatment or a combination of both. The evidence is there. That which was accepted by the magistrate and which I find was properly to be accepted, dictates the making of orders in respect of all three children to achieve their protection during their minorities. If the treatment is successful, the orders may be revoked.
In the final result, the appeal SJA 1002 of 2010 is dismissed. The appeal SJA 1003 of 2010 is allowed. Each of the protection orders is varied so as to convert it from a time‑limited order for a period of two years into an order having application until the relevant child achieves the age of 18 years. The respondent makes no application for the costs of the appeals and no such order is made. In those circumstances, the orders that I propose, are made, and these reasons are published, without the need for a further attendance by the parties.