PVS v Chief Executive Officer of the Department of Child Protection
[2009] WASC 406
•21 DECEMBER 2009
PVS -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION [2009] WASC 406
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 406 | |
| Case No: | CIV:3101/2009 | 21 DECEMBER 2009 | |
| Coram: | MURRAY J | 21/12/09 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PVS CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION |
Catchwords: | Courts and tribunals Application to stay proceedings before Children's Court pending transfer to Supreme Court Heads of power discussed No matter of principle involved |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 4(1) Magistrates Court Act 2004 (WA), s 36 |
Case References: | Director-General of the Department for Community Development v T'Hart [2003] WASCA 110; (2003) 27 WAR 185 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION
Respondent
Catchwords:
Courts and tribunals - Application to stay proceedings before Children's Court pending transfer to Supreme Court - Heads of power discussed - No matter of principle involved
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 4(1)
Magistrates Court Act 2004 (WA), s 36
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr S B Watters
Children's Representatives : Ms R H Reader & Ms R Bourgeois
Solicitors:
Applicant : In person
Respondent : State Solicitor for Western Australia
Children's Representatives : Reader Lawyers and Mediators
Case(s) referred to in judgment(s):
Director-General of the Department for Community Development v T'Hart [2003] WASCA 110; (2003) 27 WAR 185
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1 MURRAY J: There are two applications before the court. As I have indicated there are other applications, single judge appeals as I have understood it, in relation to each of the matters the subject of applications before, and being dealt with by, the Children's Court. Those are not matters which are in any way before me and they will be dealt with in the ordinary course of events.
2 It is appropriate, I think, that I start with the application for review. I make no reference to the form of that application, but I have indicated that it is supported by affidavit material which cross-references itself effectively to the other application before the court, which is for a stay and removal of the matters before the Children's Court into this court.
3 However, looking firstly at the process which is sought to be employed by way of review, the application before the court does not itself, as the rules require, set out what are the grounds upon which the review is sought. The application is made under s 36 of the Magistrates Court Act2004 (WA). No particular part of s 36(1) is relied upon, but if I may make a global observation about the process under that provision, it is concerned with the process of removing into this court by way of review conduct, of a magistrate in this case, which would formerly have been of a kind which would attract an application in this court for what is described as prerogative relief, the old writs of mandamus, prohibition and certiorari.
4 It is because such a variety of grounds may be made for an application of that kind that it is important to have regard to the grounds. The application in relation to that, it seems, is proposed to be supported, but may not be supported in this way, by what has been sent by facsimile to the listing coordinator of the court, a document of considerable length containing 34 numbered paragraphs setting out what is described as a partial list of irregularities in the Children's Court proceedings in each of the three matters which are before the magistrate in that court.
5 Many of those matters are matters upon which the applicant has touched in her argument presented to me, both orally at length and in writing. They are not, of course, at all matters about which I have anything to say or with which these proceedings before me are concerned.
6 What I am going to do with respect to that application is to simply adjourn it sine die and encourage the applicant to have regard to the provisions of the Act and the Rules, preferably to obtain legal representation to enable her to understand the process and how best it may
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- be advanced and to, at a convenient time so far as she is concerned, raise properly the matters upon which she proposes to rely in the application for review.
7 One paragraph that keeps jumping out at me as I peruse the document is item 20 and I quote, 'The only witness the magistrate has listened to is a pretty one with much gold jewellery and a lot of cleavage.' I have to say that reliance upon observations of that kind would provide the court with no useful basis upon which it might consider whether any matter which might support a review under s 36 of the Magistrates Court Act, does in fact arise. So I say at this stage that careful attention obviously needs to be given to that application for review.
8 I do wish to make it clear that I understand that the process of review is one which may be applied to the magistrate in the Children's Court because the Children's Court is one to which, by s 4(1) of the Children's Court of Western Australia Act 1988 (WA) it is expressly provided that the provisions of s 36 of the Magistrates Court Act apply. But the fundamental inadequacy of that application would make it impossible, if for no other reason, that a stay order be made in the course of that application. It is not demonstrated in its present state to have any merit whatsoever.
9 I turn then to the second application which is before the court and which does adequately raise the substantive issues in relation to the stay of the proceedings in the Magistrates Court, described in that application as an emergency stay of those proceedings which are currently in the process of being heard and have been for a considerable time in that process.
10 I will come back to the substantive application in a moment but on the basis that, pending its determination, the court may grant a stay of the proceedings in the Magistrates Court pending the removal of the case to this court I can look at the substantive matters that are raised in support of that application for a stay.
11 There is a lot of cross-fertilisation in the grounds. Generally, it is sought to base the application to remove the matters into this court by reference to the extraordinary circumstance, as the applicant has told me on a number of occasions, that a child's life and psychiatric wellbeing are in danger if, as the applicant asserts, the proceedings in the Children's Court are permitted to continue in their ordinary way to their final resolution by a decision of the Magistrate involved. The grounds upon
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- which the application is made, as developed in the affidavits which are before me at length and, as have been developed and added to today, may be addressed in summary form.
12 In the first place, the applicant makes specific reference in par 14 of one of the affidavits to a general description of the deterioration of the behaviour of the child in question, the eldest of the three children, in the context of foster placements. That evidence is of doubtful admissibility in the form in which it is presented to the court, but I feel able to accept the proposition that I may deal with this application by treating the propositions which are there put as being established without, I make clear, being in a position to make factual findings of a definitive kind.
13 There is a general description of what is said to be observably worsening behaviour on the part of the child to which psychologists have apparently attached the label 'oppositional defiant disorder' and the like. Specific instances of such behaviour are referred to as exemplifying conduct of the kind upon which reliance is generally placed. The first concerns an event of which the evidence before the Children's Court has spoken; that is, evidence given by the psychologist, Dr Dear, on 16 November 2009 before the Children's Court in relation to an event which involved him, as it occurred, on 6 November 2009. The incident described would clearly be behaviour of a most troubling kind, given the age and determination of the child to behave in the way described, including resistance to restraints endeavoured to be imposed by a police officer who attended. I viewed photographs which show the outcome of that behaviour in relation to the interior of the motor vehicle and it is obvious that considerable force was used and damage was done over an extended period of time.
14 Then there is a reference to a classroom incident on a date which I gathered was relatively contemporaneous with the incident concerning the car. Damage was done to computers and a fan, I was told. The behaviour was described by the school principal, Ms Bromley, in testifying before the Children's Court. The incident was similar to the first, particularly in the light of the incapacity to deter the child from persisting with the behaviour and the incapacity to restrain him during the course of the events described.
15 Then, in early November of this year, it is said that an incident occurred in the bedroom of a foster placement where much damage was done by way of graffiti, in particular, and again the nature of the behaviour is evident and reliance is placed upon this as being evidence of
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- continuing deterioration in the child's behaviour as a response to the situation in which he was placed.
16 There is not, in the evidence which was provided, a description of the relationship between that behaviour and anything directly concerned with the continuation of proceedings in the Children's Court, however. I was directed to evidence given, particularly at ts 148 - 155, by Dr Dear on 18 November 2009, and apparently he was brought to this on a considerable number of occasions and did make the general observation that the child, if fearful that he might not go home, might well respond again with an incident of the kind which had been previously occurring and by exhibiting behavioural problems of the kind which had previously occurred, behaviour of some real severity, attention-seeking behaviour, as I gathered from the reference to Dr Dear's evidence at 150 of the transcript before the Children's Court. Dr Dear expressed the view that there was a serious potential for trouble of this kind if the position was not able to be resolved satisfactorily.
17 One can well understand that a sensitive child would behave in this way and that the trigger of such behaviour might well be concerned with his placement and with the uncertainty of his situation, but it will be observed that in relation to that, there is no reference to the particular proceedings before the Children's Court or a danger of harm if those proceedings are permitted to continue to their conclusion by a decision one way or the other by the Children's Court, which is the specialist court which has the matter before it, and which is concerned to resolve issues of this kind and does so regularly.
18 The applicant relies also on a letter by Dr Louw, a consultant psychiatrist, whose curriculum vitae is appended to the letter. She writes to the court at the request, she says, of the applicant and she says this:
Whilst I have never met or examined the child, information such as marked deterioration in his mental state and behaviour has become available to me mainly through the applicant, Dr Gregory Dear's psychological reports and [a solicitor] This deterioration has occurred over a period of three years against a background of the child being subjected to multiple and ongoing stressful experiences in relation to medical, legal, custodial issues; in particular, multiple incidents of removal from his mother's care and multiple changes of other carers. Based on the information given above, it is my opinion that the child is a very traumatised and sick child and at high risk of violent behaviour with self-harm and harm to others. I have been told that since the court case in May 2009 he did express suicidal thoughts and that he has made a violent attack against a carer.
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19 There are a number of things which must be said about that. In the first place, I am told that although it might be possible for the court to communicate directly with Dr Louw by way of a telephone connection, the position so far as Dr Louw is concerned is the same today as it was on 18 December 2009. Without examining the court's power and capacity to make that contact, it would not be warranted because no more could be obtained from Dr Louw than is succinctly expressed in the letter, in the paragraph that I have quoted.
20 It is very evident then that Dr Louw has not met or examined the child. What she is speaking of is the sort of reaction which might be anticipated and she is saying that the behaviour of the child, if accurately reported, a matter, of course, beyond Dr Louw's capacity to speak, is consistent with a child who is traumatised by the situation currently applicable to him. The letter does not relate that trauma at all to the process of the hearing before the Children's Court and the determination of the proceedings before that court.
21 In the end I am left with clear evidence of a traumatised child, but with no evidence which would relate that trauma directly to the continuation of the proceedings in the Children's Court so as to entitle me to conclude that those proceedings should be stayed for the purpose of alleviating a clearly apprehended danger to the child if they continue.
22 Indeed, I think that there is also indication that that is not the view of the applicant by reason of the fact that this application is to support a process by which it is sought to remove the proceedings into this court and to have them continue here, if it were not necessary, as I imagine it would be, to start again and deal with the credibility issues that have been confronting the Children's Court. I imagine this would not be a case where the parties would have the proceedings continue so that this court might make a determination based upon the evidence given in the Children's Court.
23 The application for removal relies on two separate heads of power so far as this court is concerned. The Magistrates Court (Civil Proceedings) Act 2004 (WA), s 39, provides a power to transfer into this court or the District Court, proceedings which are being conducted in a Magistrates Court. The Children's Court is not a Magistrates Court. This court only has the power to review the processes of the Children's Court because, as I have already mentioned, the Children's Court of Western Australia Act, s 4(1), expressly applies that review power in relation to a Magistrates Court, to the Children's Court. So far as I am aware, there is no
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- equivalent provision which would enable this court to exercise the powers which are contained in s 39 of the Magistrates Court (Civil Proceedings) Act.
24 However, it also ought to be said that, although the matter has not been fully argued, as I am sure the applicant would say would be her wish, it is abundantly clear, it seems to me, what the fate of that application must be if the power under s 39 applies. Section 39(4) allows this court to make an order transferring the case into the superior court if satisfied that all or part of the case is within its jurisdiction (I will return to that in a minute) and should be dealt with by the superior court because of its complexity or because of a question of law involved. That is the aspect of s 39(4) upon which reliance is placed in the application which is made.
25 During the course of argument the applicant did not refer to any question of law involved, and the law would seem to be abundantly clear. The difficulty of the case upon which she relied, and which was also referred to in submissions made by the respondents, is concerned with the factual material upon which the court is to make findings and determine the issue before it. It is there that it is said that the complexity of the case lies.
26 I would not doubt that there is much factual complexity in the material before the Children's Court, but nothing emerges from the papers in support of that application and nothing emerges from what has been said, to indicate that the complexity is such that the matter ought to be transferred into this court and the Children's Court should be deprived of its capacity to continue to hear and deal with the cases and resolve the questions which arise in them. So, looking at s 39(4) on the merits would lead me to the clear view that it may not be applied to transfer the case into this court.
27 The applicant relies, in relation to one of the grounds upon which s 39 may be applied, upon the parens patriae jurisdiction of this court. It is necessary, I think, to rely upon that because it is only by reliance upon that concept that this court might be satisfied that all of the cases in the Children's Court were, in the words of s 39(4), within the jurisdiction of this court. The question would arise whether the nature of that jurisdiction, which certainly exists and is secured to this court by the provisions of the Supreme Court Act 1935 (WA), s 16(1)(d)(ii), is a jurisdiction which would be ample enough to cover the ground which is available to the Children's Court by the exercise of its statutory jurisdiction.
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28 The nature of the parens patriae jurisdiction has, as the applicant has observed in the written material, been generally discussed recently in the case Director-General of the Department for Community Development v T'Hart [2003] WASCA 110; (2003) 27 WAR 185. The case is a decision which factually would not assist in this case. It is a decision of the Full Court, the judgment of Hasluck J, with whom Wheeler J and I agreed.
29 Although this court may have jurisdiction, it seems to me that there is not any capacity to establish a ground upon which, if the power exists in relation to the Children's Court under s 39 of the Magistrates Court (Civil Proceedings Act) 2004, which I doubt, the matter might be transferred to this court by the application of that section. I come to that conclusion primarily upon the ground that it is a provision which is concerned with the Magistrates Court and is not preserved as a power applicable to the Children's Court, but also upon the ground that the necessary factual complexity has not been made out.
30 In the final result then, the application CIV 3102 of 2009 is dismissed. The application CIV 3101 of 2009 is adjourned sine die and the application, dependant in those proceedings, for a stay of the hearing of the proceedings in the Children's Court, is dismissed.
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