RCT v Department for Community Development

[2009] WASC 263

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RCT -v- DEPARTMENT FOR COMMUNITY DEVELOPMENT [2009] WASC 263

CORAM:   McKECHNIE J

HEARD:   31 AUGUST 2009

DELIVERED          :   11 SEPTEMBER 2009

FILE NO/S:   SJA 1044 of 2009

BETWEEN:   RCT

AT
Appellants

AND

DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE A HORRIGAN

File No  :CC 5190 of 2005, CC 5191 of 2005, CC 5192 of 2005

Catchwords:

Children - Protection orders - No new principles

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellants:     In person

Respondent:     No appearance

Solicitors:

Appellants:     In person

Respondent:     No appearance

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

Chief Executive Officer of the Department for Child Protection v AT [2009] WACC 3

RT v CRO (No 3) [2007] WASC 223

1. McKECHNIE J:  There is a considerable background to this application for leave to appeal filed by RCT and AT on 11 May 2009.

2. On 31 August 2006 the Children's Court declared that three children of RCT and his wife AT were in need of care and protection.  They were committed to the care of the Department for Community Development until 18 years of age.

3. RCT and AT appealed against that decision.  In a judgment cited as RT v CRO (No 3) [2007] WASC 223 Blaxell J allowed the appeal and varied the order made by the magistrate by reducing the period of committal to 2 years. Blaxell J's orders were due to expire on 30 August 2008 but the Department lodged applications seeking extensions of those orders. These applications were heard over three days (16, 17 and 18 March 2009). On 3 April 2009 the magistrate handed down comprehensive reasons: Chief Executive Officer of the Department for Child Protection v AT [2009] WACC 3 and ordered that the protection orders dated 31 August 2006 in each case be revoked and replaced with protection orders until each child attained 18 years.

4. Although the handwritten appeal notice was lodged on 11 May 2009 it was not until after the court had contacted RTC that he was able to deliver the balance of the transcript.  The application for leave to appeal is out of time but of itself an extension would prove no barrier.

5. The grounds of appeal are as follows:

   1.Cassandra Kelly was in the trial if that person was to be called in as a witness in the proceeding.

   2.No contact from 2005.

   3.19‑6‑90 and [R] was raped in DCD care.

   4.The children were made wards of the state until 18 years of age.  2007 the Supreme Court over turned that for 2 years and now the Childrens Court have made it until 18 years of age.  It seems to be going between these two courts.

   5.The three children all are having ½ days at school when it is---(indecipherable).

6. On 6 August 2009 I provisionally decided to refuse leave to appeal.  The appellants exercised their right to have a hearing which occurred on 31 August 2009.  Each appellant is unrepresented.  Both appellants presented arguments as to why leave to appeal should be granted.  At the conclusion of the hearing I reserved my decision to consider their submissions.

Ground 1

1. Ground 1 is misconceived in two respects.  First, there was no order for witnesses to remain out of hearing of the court.  Secondly, Ms Kelly was the first witness called following counsel's opening.  This is a matter about which RCT feels strongly as does perhaps AT.  At the commencement of cross‑examination AT asked the witness: '[being] a witness did you have to be into the courtroom'.  RCT then intervened and said he was going home:

   I'm going home, because it's flawed.  She was in the courtroom when the discussions were happening, but everybody is a witness outside the courtroom.  She was not to sit in the courtroom.  (ts 26)

2. Ms Kelly was the case worker and it would be expected that she would be the person most suited to instruct counsel on behalf of the Department.  Moreover, counsel's opening in any event focused on the earlier decisions of the magistrate and the judge and not to any degree on the evidence to be called.  Finally, Ms Kelly's evidence‑in‑chief had largely been submitted in advance by way of affidavit.  There is no miscarriage of justice or error of law.  There are no reasonable prospects of success on this ground.

Ground 2

1. AT has not had direct contact with the children since 16 February 2006 and RCT has had no contact from 2005.  The magistrate was aware of this fact and said in her judgment:

   The children have had no face‑to‑face contact with their father since approximately October 2005 and no face‑to‑face contact with their mother since approximately March 2006.  The Department however facilitates contact between the children and their parents, and vice versa, through the exchange of letters, drawings, photographs and presents. [21]

2. The non‑contact was one of the matters to be taken into account by the magistrate in her evaluation of the evidence and she did so.  She was well aware of the importance and the effect of any decision she may make to continue the protection order.  There is no reasonable prospect of arguing that she failed to take into account a relevant consideration, namely, the time since direct contact.

Ground 3

1. Ground 3 is an allegation that one child was raped while in care.

2. This allegation formed part of cross‑examination by AT after RCT had left the court.  Ms Kelly gave evidence as follows:

   Someone had broken into the residence where the children had been staying.  Someone had broken in through the window of [R]'s bedroom.  [R] reported that she had woken up with a person touching her chest on the - I think it was underneath her clothing.  That went on for not long, and then she asked the intruder if she could go to the toilet, and that is how she made here escape.  Basically in terms of the department responding to that, obviously the police were called to the residence and completed their investigation.  That happened on a Friday night I think, maybe Saturday, and we were notified on the Monday, and myself along with the children's psychologists, Julie and Anjali, attended the residence, and that was an opportunity for the children to have a debrief with the psychologists.  They did not feel that the children were - I wouldn't say not traumatised by it, but they were managing it quite well.  The psychologists were seeing the children weekly.  So they were able to monitor that situation.  In terms of the police investigation, that file has been closed.  They had no - they assessed all the evidence and nothing came back for a person of interest or anything like that.

   So it was just closed?---It was closed, yes, and we took our lead from the police.  (ts 26, 27)

3. In response to further questions she said the person was never caught.  As a result of the incident the children were moved to a more secure location.

4. In oral submissions AT submitted that Ms Kelly had given two stories as to the incident involving R, one that there was no evidence of forced entry and one that there was.  This was put to Ms Kelly in the course of cross‑examination:

   You told me on the first occasion there was no forced entry on that first occasion, and the next time you told me on a different day that it was forced entry to [R]?---I don't recall that.

   You don't recall it?---I mean, I don't know what to say.  I told you the facts of the matter.  (ts 27)

5. There was then an interruption.  The magistrate understood that AT was suggesting to the Department that if this had happened while R was in the parents' care there would have been 'all hell to pay' and that AT was submitting there did not seem to have been any consequence from it all.

6. The essential facts are that there was an incident involving R following which the Department took steps to increase security.

7. In oral submission AT also raised the issue of J who had had an operation.  She complained that the parents had not been informed for five weeks.  This is not a ground of appeal but AT did ask Ms Kelly about this and received the answer:

   The reason we didn't notify yourselves straightaway was because we were concerned that you would actually attend the hospital, and given that the department has the 'no contact' policy and given the threats that [RCT] had made previously, we did not feel that it was a risk that we were willing to take.  So I consulted with my team leader and my manager at the time, and they both endorsed the fact that we wouldn't be notifying you until after [J] had finished with the hospital.  (ts 29)

8. AT also raised the issue before me whether Ms Kelly had spoken to AT's cousin GM.  This was the subject of cross‑examination as well.  Ms Kelly said:

   [I] vaguely recall the conversation I had with [GM].  I believe the conversation I had had with him was just informing him that the Department was successful in its application in getting the 'until 18' order and that was it.  (ts 29)

9. It appears that GM had been a witness in the earlier trial.  The magistrate commented, with respect, correctly:

   It's a long way back, and it doesn't really have much bearing on this particular application that the Department is making. (ts 30)

10. The incident did not have any material effect on the issue which the magistrate had to determine.  That issue, in essence, was whether the mother of the children, AT, could be allowed supervised contact with the children or whether the threat which RCT posed was such that contact by AT might imperil the children if their location was disclosed. 

11. There are no reasonable prospects of success on this ground.

Ground 4

1. Although ground 4 is expressed as a statement there is no merit even if it was expressed as a ground of appeal. The decision by Blaxell J in 2007 could not and did not foreclose a further application being taken by the Department for an extension of that order. Blaxell J took the view that the magistrate should have allowed for the possibility that the mother might at some time in the future be in a position to permanently care for the children on her own and made an order for two years noting that 'their situation be then reviewed' [28]. The Department carried the burden of establishing the case on the balance of probabilities in the light of all the circumstances, including the judgment of Blaxell J. The magistrate was expressly aware of and took account of that decision in the formulation of her reasons for extending the order.

2. In the two year period RCT and AT remained reconciled and committed to each other with the consequence that the dangers to the children posed by RCT, and accepted by the first magistrate, Blaxell J, and the second magistrate, remain.  There is no reasonable prospect of success of this ground.

Ground 5

1. Ground 5 in the notice of appeal is indecipherable.  I invited RCT to outline his point about the ground.  In essence, he submitted that the children were spending half days in counselling when under the Schools Act they should be in school all the time.  He is concerned that the Department has not engaged teacher's aides.  He is worried that the children's learning ability will be less and that their only job when leaving school will be in a sheltered workshop because they have no education.

2. A consideration of the whole of the evidence however suggests that the children's education is a priority and is being managed.  The severe stress which was placed on them by the behaviour of RCT, and which led to the initial order for protection, is still having an impact on their present education and development but this is recognised and managed by the Department. 

3. The ground does not affect the danger which is still posed by RCT to the children.  It is this danger which persuaded the magistrate to make the order for their protection.  There are no reasonable prospects of success in respect of this ground.

4. This judgment follows a provisional decision.  I have approached the matter afresh in the light of the submissions made by the parties.  I have reread the transcript and the relevant decisions made by the magistrate and Blaxell J.  However, my conclusion remains the same.  There are no reasonable prospects of success on any ground and leave to appeal is refused.