Ref v Chief Executive Officer of the Department of Communities - [2023] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   REF -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES [2023] WASC 89
CORAM:   FIANNACA J
HEARD:   9 NOVEMBER 2022
DELIVERED          :   27 MARCH 2023
FILE NO/S:   SJA 1048 of 2022
BETWEEN:   REF
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES
First Respondent
JLB
Second Respondent
GJBJ
Third Respondent

ON APPEAL FROM:
For File No:   SJA 1048 of 2022
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S VOSE
File Number            :   PC XXX OF XXXX

Catchwords:

Appeal - Protection proceedings - Children's Court magistrate refused joinder application by carer of child - Children's Court magistrate made protection order (time-limited) for two years - Whether appellant should be joined as a party to protection proceedings - Proper construction of s 147(e) Children and Community Services Act 2004 (WA) - Interpretation of 'any other person considered by the Court to have a direct and significant interest in the wellbeing of the child' - Whether a carer of a child is a person who has 'a direct and significant interest in the wellbeing of the child' - Whether a carer of a child is a person who can bring an appeal under s 42(1) of the Children's Court of Western Australia Act 1988 (WA) - Whether there was no substantial miscarriage of justice - Errors constituting such a departure from the essential requirements of the proper exercise of the magistrate's jurisdiction as to exclude the proviso in s 14(2) Criminal Appeals Act 2004 (WA)

Legislation:

Children and Community Services Act 2004 (WA)
Children and Community Services Regulations 2006 (WA)
Children's Court of Western Australia Act 1988 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2004 (WA)

Result:

Leave to appeal granted on grounds 1 to 4
Appeal allowed

Order made joining appellant as a party to the protection proceedings
Decision of the magistrate is set aside
Order that the matter be remitted to the Children's Court to rehear the protection application

Representation:

Counsel:

Appellant	:	Mr P J Hannan & Ms R A Oakeley
First Respondent	:	Ms J Buller
Second Respondent	:	Mr G M McIntyre SC
Third Respondent	:	No appearance

Solicitors:

Appellant	:	Bromfield Family Law
First Respondent	:	State Solicitor's Office
Second Respondent	:	Women's Legal Service of Western Australia
Third Respondent	:	No appearance

Cases referred to in decision:

Abeyakoon v Brown [2011] WASCA 63
AC v The Chief Executive Officer of The Department for Child Protection and Family Services [2015] WASC 477
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
CD & EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126
Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327; (2014) 87 NSWLR 1
Crocker v Vinnicombe [2019] WASC 416
Crosswell v Ainsworth [2014] WASC 186
DL v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 71
Farnell v Chanbua [2016] FCWA 17
Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502
JD v The Department of Communities [2021] WASC 218
Joyce v Gee [2010] WASC 76
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Pacy v CEO Department for Child Protection [2008] WASC 257
Powell v The State of Western Australia [2010] WASC 54
PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Rodrigues v Ainsworth [2014] WASC 101
Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193
SL v CEO Department of Child Protection and Family Support [No 2] [2016] WASC 97
SL v CEO of the Department for Child Protection and Family Support [2017] WASC 293
Smith v Richardson [2013] WASC 114
Wallam v Dent [2008] WASC 170
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
WS v Gardin [2015] WASC 97; (2015) WAR 494

FIANNACA J:

The application and its history

This is an application for leave to appeal against a decision of a magistrate in the Children's Court of Western Australia on 16 May 2022 refusing the appellant's application to be joined as a party in protection proceedings under the Children and Community Services Act 2004 (WA) (the Act) in relation to a child, J, and the magistrate's further decision that day to extend a protection order in respect of J for two years.
At the relevant time, the appellant and her husband were J's carers under a placement arrangement pursuant to an agreement between the Chief Executive Officer (CEO) of the Department of Communities (the Department) and a foster care agency. In common parlance, they were J's foster carers.[1]
[1] The term 'foster' is not used in the Act.
J had been taken into provisional protection and care by the CEO pursuant to s 37 of the Act in December 2019, at which time he was placed in short term foster care.[2] He was only three days old. The CEO applied for a protection order (time-limited), pursuant to s 44 of the Act, on the basis that J was in need of protection due to neglect (s 28(2)(c)(v) of the Act) and/or the inability of his parents to provide or arrange for adequate care of J (s 28(2)(d)(i) of the Act).[3] A protection order (time-limited) is an order giving the CEO parental responsibility for a child for the period specified in the order.[4] It appears that the reason the application was for a protection order (time-limited) was to allow J's parents to undergo a reunification process, which, if completed successfully, would enable them to be reunified with J.[5]
[2] Appeal Book (AB) 4, 23. The year is correctly stated at AB 4, but misstated at AB 23 as 2020.
[3] AB 2, 23.
[4] The Act, s 54(1).
[5] AB 23 [9].
On 3 March 2021, more than one year after J had been taken into provisional protection and care, a protection order (time-limited) was granted, pursuant to s 45 and s 54 of the Act, for a period of one year.[6]
[6] AB 2, 23 [10].
In the meantime, on 10 February 2020, J was placed in the care of the appellant and her husband.[7] J was just over two months old at the time. It was a short term placement, to enable the reunification process to take place.[8]
[7] AB 23 [9].
[8] AB 23 [9].
It may be inferred from the fact that the protection order was made by the Children's Court on 3 March 2021 that the court had before it a proposal provided by the CEO pursuant to s 143(2), s 143A(2) and s 143A(4) of the Act, being a proposal outlining proposed arrangements for:
(a)safeguarding and promoting the wellbeing of the child, including proposed arrangements for promoting, where appropriate, the relationship between the child and the child's family or other people who are significant in the child's life; and
(b)working towards the child being returned to or placed with the child's parents, unless the CEO is of the opinion that such arrangements would be contrary to the child's best interests, in which case the CEO must explain the reasons for that opinion.
Such a proposal must be considered by the court before making a protection order (time-limited).[9]
[9] The Act, s 144.
In or about March 2022, the CEO applied for an extension of the protection order (time-limited) under s 56 of the Act, for a period of two years ('the extension application'). J was two years old at that stage.
Although the extension application is not in the materials before the court, it may be assumed, in the absence of any indication to the contrary, that it was made while the original order was in force, in compliance with s 56(2) of the Act. The CEO was required to provide the court, at the time of making the extension application, a proposal for the child under s 143, as outlined above.[10] More specifically, the proposal had to include, pursuant to s 143A(5), plans for securing long‑term stability, security and safety in the child's relationships and living arrangements ('the s 143A(5) plans'). The relevant proposal, headed 'Written Proposal for Child', and dated 23 February 2022 ('the s 143 proposal'), was prepared by Ms Krystelle Short, a Child Protection Worker with the Department.[11] The contents of the s 143 proposal indicate that a review had been completed of the care plan for J,[12] as required by s 56(1) and s 90 of the Act. The s 143 proposal outlined historical matters, J's current circumstances and the reunification process that would enable J's parents to be reunified with him.
[10] The Act, s 143(3)(b), s 143(5).
[11] AB 4 - 13.
[12] AB 4 - 13.
The extension application was heard on 16 May 2022. I will refer to the hearing of that application as 'the protection proceedings'. The original order remained in force until the application for an extension was determined.[13]
[13] The Act, s 56(3).
On 17 March 2022, the appellant made an application in the Children's Court to be joined as a party in the protection proceedings ('the joinder application').[14] The joinder application purported to be pursuant to s 147(e) of the Act, which provides, relevantly, that a person 'is a party to [protection] proceedings' if they are 'considered by the Court to have a direct and significant interest in the wellbeing of the child'. The joinder application was supported by an affidavit made by the appellant on 16 March 2022 (the appellant's first affidavit).[15] The Department filed a response, in the form of an affidavit by Ms Short, dated 11 May 2022 (Ms Short's affidavit), opposing the joinder application.[16] As I noted above, Ms Short was the Child Protection Worker who prepared the s 143 proposal. The appellant then filed a further affidavit, dated 13 May 2022, in reply to Ms Short's affidavit (the appellant's second affidavit).[17]
[14] AB 15.
[15] AB 18 - 20.
[16] AB 22 - 25. See, in particular, [6] of Ms Short's affidavit.
[17] AB 27 - 34.
At the protection proceedings on 16 May 2022, the appellant was represented by counsel, who made submissions in support of the joinder application. One of the issues in the appeal is whether the appellant was given a fair hearing.
In any event, the learned magistrate did not consider the appellant to have a direct and significant interest in J's wellbeing. Consequently, he refused the joinder application.[18]
[18] AB 78.
His Honour was of the view that the extension application was 'in a position to resolve', on the materials before the Children's Court.[19] Without hearing further submissions, his Honour made the order sought, extending the protection order (time-limited) for a period of two years ('the extension order').[20] I note that, pursuant to s 144(2) of the Act, his Honour was required to have regard to the likelihood of the s 143A(5) plans in the s 143 proposal being achieved.
[19] AB 77.
[20] AB 78.
The appellant seeks leave to appeal, under pt 2 div 2 of the Criminal Appeals Act 2004 (WA), against:
(1)the magistrate's decision to refuse her application to be joined as a party to the protection proceedings; and
(2)the extension order.
The challenge to the extension order is on the basis that, having erred in refusing to join the appellant as a party to the protection proceedings, the magistrate acted without jurisdiction in proceeding to determine the extension application and making the extension order.

Appeal Notice

The appellant filed an appeal notice on 13 June 2022, which, if the appeal is otherwise competent, was within time.[21]
[21] Criminal Appeals Act, s 10(3).
On 22 August 2022, a registrar of this court ordered that the application for leave to appeal be heard together with the appeal.
The appeal notice contains seven grounds of appeal, as follows:[22]
[22] Some particulars have been anonymised for the protection of the child.
1.The learned Magistrate erred in law and fact, within the meaning of section 8(1)(a)(i) of the [Criminal Appeals Act], by concluding that the Appellant, was not entitled to be joined as party to Children's Court of Western Australia Proceeding [REDACTED] under [the Act], in respect of the care and protection of [J], despite being the foster carer of [J]. Particulars of this ground are set out in grounds 2, 3 and 4 below.
2.The learned Magistrate should have held that the Appellant was a person falling within the expression 'any other person ... [having] a direct and significant interest in the wellbeing of the child' in section 147(e) of [the Act], with respect to [J].
3.In undertaking the 'consideration' required by section 147(e) of [the Act], the learned Magistrate proceeded on the basis that the Appellant's position as [J's] foster carer in and of itself meant that the Appellant could not be a person falling within section 147(e) of [the Act] with respect to [J]. The learned Magistrate thereby took into account an irrelevant consideration and erred in law.
4.The learned Magistrate erred in fact and/or law, by concluding that the appellant, as [J's] foster carer:
(1)was:
(a)a 'paid agent' of the Department of Communities; [and]
(b)in a 'paid relationship' with the Department of Communities; and thereby
(2)had 'no [other] relationship to [J] whatsoever'.
5.The learned Magistrate denied the Appellant procedural fairness, and thereby acted without jurisdiction, within the meaning of section 8(1)(a)(ii) of the [Criminal Appeals Act], by not permitting the appellant's solicitor to make submissions before the Magistrate on 16 May 2022 in support of the appellant's application for joinder as a party to [REDACTED].
6.The refusal of the learned Magistrate to permit the Appellant's solicitor to make submissions before the Magistrate on 16 May 2022, in support of the Appellant's application for joinder as a party to [REDACTED], was a miscarriage of justice, within the meaning of section 8(1)(b) of the [Criminal Appeals Act].
7.The failure of the learned Magistrate to permit the Appellant to make submissions before the Magistrate on 16 May 2022 in [REDACTED], concerning [J's] best interests, despite being [J's] foster parents, was a miscarriage of justice, within the meaning of section 8(1)(b) of the [Criminal Appeals Act].
In essence, the grounds of appeal fall into two categories:
(1)The learned magistrate erred in law and fact by concluding the appellant was not entitled to be joined as a party to the protection proceedings (Grounds 1 to 4).
(2)The learned magistrate denied the appellant procedural fairness, and thereby acted without jurisdiction and occasioned a miscarriage of justice (Grounds 5 to 7, to which I will refer as 'the procedural fairness grounds').
The appellant seeks orders that leave be granted on each ground of appeal, the appeal be allowed, the magistrate's refusal of the appellant's joinder application be set aside, the appellant be joined as a party to the protection proceedings and be permitted to make submissions in respect of the extension application, the extension order made by the magistrate on 16 May 2022 be set aside, the extension application be remitted for hearing and determination by the Children's Court according to law, and there be no order as to costs.
The appellant requires leave to appeal.[23] The Court must not grant leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.[24] In other words, that it has a rational and logical prospect of succeeding.[25]
[23] Criminal Appeals Act, s 9(1).
[24] Criminal Appeals Act, s 9(2).
[25] Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193 [55] - [64].

Overview of the respondents' submissions

The first respondent, both in written submissions and at the hearing, conceded that the magistrate erred by failing to apply the statutory test set out in s 147(e) of the Act. More specifically, the first respondent conceded that:[26]
The Magistrate, while correctly identifying the relevant test under s 147(e) of [the Act], did not apply the test to the circumstances of the Appellant to consider whether the Appellant is a person with a direct and significant interest in the wellbeing of the child.
[26] First respondent's outline of submissions filed 21 October 2022, 9 [43].
The first respondent further conceded that, had the magistrate applied the correct test, it was open on the available evidence to join the appellant as a party to the protection proceedings. In essence, therefore, the first respondent conceded that leave to appeal should be granted in respect of Grounds 1 and 2,[27] the appeal should be allowed, the extension order should be set aside, the court should make an order joining the appellant to the protection proceedings, and the matter should be remitted to the Children's Court for a hearing of the extension application according to law. If the first respondent's concession is accepted, there would be no need to consider the procedural fairness grounds.
[27] I note that Ground 1 incorporates grounds 2, 3 and 4 as particulars. However, as will appear below, there is some ambiguity to Ground 4. The particulars of the magistrate's errors will be discussed below.
The second respondent (J's mother), both in written submissions and at the hearing, submitted that the appeal is incompetent, as it does not fall under any of the statutory categories of appeal in respect of which this court has jurisdiction. If the Court were to find that the appeal is competent, then the second respondent's submission is that the appeal should be dismissed because the magistrate did not deny the appellant procedural fairness, and did not err in either fact or law in refusing to join the appellant as a party to the protection proceedings.
The third respondent (J's father) did not file a notice of intention to take part in the appeal. He did not file submissions or appear at the hearing. It appears that, in the Children's Court, he had indicated through his counsel at an earlier hearing that he consented to the making of an extension order and had been excused from further attendance.[28]
[28] AB 70.

Factual Background

Before dealing with the relevant statutory framework and legal principles, and the issues raised by the grounds of appeal, it is appropriate, for context, to set out some of the factual background that was before the magistrate, in the form of the s 143 proposal, the appellant's affidavits, and Ms Short's affidavit. The summary that follows is derived from those materials, and has regard also to the appellant's submissions. I am mindful of the need to be sensitive to the privacy of the parties involved. However, what follows does provide important context. The parties' privacy is preserved by the anonymisation of their identities.
J was born in December 2019. He was taken into provisional protection and care shortly after his birth, and the CEO commenced the application for a protection order (time-limited) the following day. It is evident from the basis on which the order was eventually made on 3 March 2021, that J was considered to be in need of protection due to neglect and/or the inability of his parents to provide or arrange for adequate care of him. The s 143 proposal provides further context. In summary, the factors that led or contributed to those circumstances were exposure of J to domestic violence perpetrated by his father against his mother, illicit substance use by J's father, misuse of prescription medication by J's mother, mental health issues affecting both parents (arising, it would seem, from their use of substances or medication), and the lack of safe and stable accommodation.
J was placed in the full-time care of the appellant and her husband on 10 February 2020 through a foster care agency under an agreement to provide J with a temporary placement. As I explained above, the intention was that J's parents would be given the opportunity to participate in a reunification process, with a view to being reunified with J. Self-evidently, that would require J's parents to demonstrate an ability to provide or arrange for adequate care of J. It is also evident from the s 143 proposal and Ms Short's affidavit that the placement in foster care was temporary, 'while family options were explored'.[29] As at the time of the s 143 proposal, 'no viable family placement options [had] been identified', but the Department was continuing to explore such options.[30] J's maternal grandparents and paternal grandmother had indicated, for various reasons, that they were unable to care for J.
[29] AB 4.
[30] AB 4.

On 3 March 2021, the Children's Court made the protection order (time-limited), being an order that the CEO have parental responsibility for J for a period of one year. As I noted above, prior to the expiry of the order on 3 March 2022, the CEO applied for an extension of the order for two years. The application was supported by the s 143 proposal.
In the s 143 proposal, Ms Short outlined a four-stage reunification plan for the second and third respondents to be reunified with J. During the reunification process, the second and third respondents were required to have a 'safety network', being 'a network of safe and appropriate people around them, who are actively involved in supporting them through reunification and are willing to engage [in] meetings and safety planning with the Department'.[31] The proposal stipulated that the Department would work with the parents to establish 'professional and personal safety networks and supports'.[32] During the first two stages, the parents' contact with J would be supervised by a Department worker, in Stage 1, and a member of the respective parent's safety network in Stage 2. In Stages 3 and 4, contact would be unsupervised.
[31] AB 6.
[32] AB 7.
At the time of the report, both parents were in Stage 2 of the plan.[33] The second respondent had contact with J three days a week, and the third respondent had contact two days a week, although for an equal number of hours. In her affidavit, Ms Short stated that both parents were actively engaging with the Department and the reunification process.[34]
[33] AB 4 - 5.
[34] AB 23 [11].
Apart from the reunification process, the s 143 proposal noted that the Department 'will continue to promote contact with family and explore family care options for [J] to support his sense of identity and connection to culture'.[35]
[35] AB 5.
It was also noted that, on J's last annual health assessment, no significant health issues were identified.[36]
[36] AB 5.
Three key safety goals were identified.[37] The first goal was that J will be cared for by a safe adult and living in a safe and calm home that is free from family and domestic violence, including coercive control by his father over his mother.[38] The second goal was that J will be cared for by an adult who is mentally well and not taking illicit substances or misusing prescription medication. It was stipulated that both parents must engage with appropriate services to address their mental health and substance use issues.[39] The third goal was that the Department needs to see that J's parents have a safety network, as described above.[40]
[37] AB 5 - 6.
[38] AB 5.
[39] AB 5.
[40] AB 6.
The s 143 proposal set out conditions and a timetable for reunification, which included that '[i]f one parent meets the reunification requirements and seeks to have sole custody, [J] may be reunified with that parent and safety planning must be completed around the other parent's contact with [J]'.[41] The proposal also identified 'essential ongoing behavioural requirements' that the parents had to meet at each stage of the reunification process.[42] These included: consistent attendance for contact with J; following the contact agreement and/or safety plans in place; monthly meetings with the Department to review their reunification progress; active engagement with the services to which they are referred; demonstration by J's father that he can manage his personal and intimate relationships in a respectful way; safe and stable accommodation; demonstration by both parents that they are able to consistently maintain their mental health and wellbeing by seeking personal and/or professional support; and J's mother taking her prescription medication as prescribed and for their intended purpose.
[41] AB 6.
[42] AB 6 - 7.
In discussing how the risk to J would be managed, the s 143 proposal noted that, '[a]s the parents complete the reunification requirements[,] and contact changes accordingly, safety planning will occur with the parents and their safety network members to ensure that [J] will be safe during contact and his best interests are being met.'[43] It stipulated that '[t]hese plans will be revised periodically and must be approved by the District Director.'[44] The proposal made clear that there would be ongoing consultation 'to ensure that all decisions being made occur in the context of [J's] best interests.'[45] It stipulated that progress with reunification requirements, and contact, will be reviewed monthly.[46]
[43] AB 7.
[44] AB 7.
[45] AB 7.
[46] AB 7.
The s 143 proposal set out behavioural goals and tasks to be completed by the parents, and the manner in which contact with J would occur, for each of the first three stages of the reunification process. In relation to contact, it specified for each of those stages that: 'Contact frequency and length can be negotiated depending on [J's] routine, with his best interests at focus.'[47]
[47] AB 9, 11, 12.
In relation to the last stage of the process, described as 'Reunification', the s 143 proposal stated:[48]
At this stage, the case manager will consult with a District psychologist and create a transition plan for moving [J] into the full time care of his parent/s (reunification).
[48] AB 12.
After referring to further aspects of Stage 4, the proposal stated the following in respect of contact:[49]
During Stage 4, the parent/s contact will remain unsupervised within their home. Contact visits will be gradually extended to full-days and potentially sleep-overs depending on the child's age and routine. These changes will occur at a rate guided by the District psychologist's recommendations with consideration of [J's] best interests and how comfortably he settles into a routine in the home. [J's] parents and carers will be involved in the development of the transition plan.
[49] AB 12
Finally, the s 143 proposal referred to a 'Parallel Plan for securing long‑term stability, security and safety in the child's relationships and living arrangements', stating:[50]
The primary goal is for reunification of [J] with Ms [B] and/or Mr [J]. Should reunification not occur within the two-year extension, or if both parents disengage with the Department and make no progress towards reunification, the Department will seek to have [J] remain in the care of the CEO. This will require making an application to the Court for a protection order (until 18). Throughout the reunification process, the Department will continue to seek a suitable family placement for [J] with the expectation that they can provide long-term care for [J] should it be required. [J's] attachment with his current carers will be taken into consideration and consultation will occur with the District psychologist regarding stability for [J] and his best interests. If an application is made for long-term order, the Department will engage in long-term planning with the parents regarding contact, placement, and care planning.
[50] AB 13.
It is apparent that the planning in the s 143 proposal contemplates an attachment between J and his current carers.
It is evident from the appellant's first affidavit that a close attachment had developed over the two years during which J had been in the care of the appellant and her husband before the extension application was made. The appellant and her husband have a daughter, E, who was five years old at the time of the extension application. According to the appellant, J had developed a strong sibling relationship with E, who regarded J as a little brother, although she was aware of, and had been prepared for, the prospect of separation from J. The appellant also stated that J called her 'mum' and her husband 'dad', which was not something they taught him, but something he appears to have learnt from E.[51] She also said that J had strong relationships with the extended families of the appellant and her husband.[52]
[51] AB 20 [11].
[52] AB 20 [10].
The appellant stated she was J's primary carer, who met all of his needs. She described his personality and behaviours. She said she has kept J safe, has taught him about appropriate behaviours, safeguards and boundaries, and has ensured he meets his social, emotional and developmental milestones.[53]
[53] AB 19 [5].
The appellant's husband was working full-time, and the appellant was working part-time. J was enrolled in day care up to three and a half days a week 'so as to facilitate his contact with his parents and [the appellant's] work'.[54]
[54] AB 19 [6].
The appellant stated that she and her husband 'have had difficulty navigating the uncertainty and stress that goes with being foster carers', particularly in circumstances in which they are the only family J has known, and their relationship with J is no different to their relationship with E.[55] She said they want to provide J and E with 'the benefit of certainty and security and protect them from the trauma of uncertainty', and they want J 'to be raised in a safe and loving family and have the opportunity to maintain all his relationships, including his relationship with his parents and their extended families'.[56]
[55] AB 20 [11].
[56] AB 20 [11].
The applicant stated that she was making the application for joinder so as to allow her 'to participate in the decisions to be made in [J's] best interests'.[57]
[57] AB 20 [12].
There is no suggestion in Ms Short's affidavit, responding to the appellant's first affidavit, that the manner in which the appellant and her husband have cared for and raised J until now is inappropriate. Having regard to the fact that J was taken into foster care as a baby and has been cared for by the appellant and her husband since that time, the nurturing, education, affection and family environment that they have provided to J would be regarded by fair-minded persons to be wholly appropriate. It is natural that attachments would develop, and that is recognised in the s 143 proposal, as I noted earlier. It is no more than a recognition of human behaviour. At the same time, where reunification with the child's parents, and a preference for placement of the child with their birth family, have been identified as the desired objectives at the outset, foster carers in the position of the appellant and her husband must be prepared to 'navigate the uncertainty and stress' of providing foster care to a child in those circumstances (as the appellant put it), and must cooperate with the process, as the appellant has recognised.
It is in relation to the need for cooperation with the process that the Department initially took issue with the perceived approach of the appellant and her husband, and opposed her application to be joined as a party to the protection proceedings. The grounds for the objection were set out in Ms Short's affidavit. Some of Ms Short's assertions were subsequently disputed by the appellant in her second affidavit. As I will explain below, if there was a need to resolve any of the disputed facts (about which it is not necessary for me to comment), that resolution would have followed, rather than preceded, joinder. However, it is appropriate to summarise the issues raised by the Department, and the appellant's response, as they were part of the information before the magistrate.
Ms Short claimed that the appellant and her husband had repeatedly stated their opposition to reunification and 'used their own feelings as an assessment of what would be in [J's] best interest'.[58] She also claimed that the appellant and her husband regularly voiced discontentment in relation to contact arrangements and sought to create barriers to contact, citing J's wellbeing.[59] She said that, on 14 January 2022, during a Care Plan meeting, the appellant and her husband 'protested the Department's decision to continue the reunification process', as 'they consider themselves to be [J's] family'.[60] Ms Short also stated that, at the same meeting, the appellant and her husband said they strongly opposed the Department's efforts to continue seeking a family placement for J during the reunification process.[61] According to Ms Short, when she sought to explain to the appellant the psychosocial research and evidence concerning the long-term impact on a child resulting from their removal from their parents' care, the appellant claimed it was not true.[62] Finally, Ms Short referred to a letter from the appellant's lawyer indicating that the appellant opposed the Department's decision to apply for a two-year extension of the protection order.[63]
[58] AB 23 [13].
[59] AB 23 [15].
[60] AB 24 [16].
[61] AB 24 [17].
[62] AB 24 [18].
[63] AB 24 [19].
In her second affidavit, the appellant said she had had limited communication with Ms Short, because J's placement was managed by the external foster care agency.[64] She said that, for reasons of confidentiality, which she accepts and supports, she had limited information about, and, therefore, limited insight into the circumstances in which J came into the care of the Department.[65] It appears that she was provided with the s 143 proposal, at the request of her lawyer, after lodging the joinder application.[66] The appellant claimed she did not have a fixed position in relation to the future care arrangements for J.[67]
[64] AB 28 [5].
[65] AB 28 [6].
[66] AB 28 [7].
[67] AB 28 [6].
The appellant denied that she and her husband had repeatedly expressed opposition to the reunification process, although she admitted that they had concerns about the effect on J of ongoing uncertainty about his future care arrangements.[68] She did not agree with Ms Short's opinion that she and her husband 'used their own feelings as an assessment of what would be in [J's] best interest', and said she did not know the basis for the opinion.[69] However, she reiterated the difficulty she and her husband experienced in navigating the uncertainty and stress that goes with being foster carers, and admitted they had often expressed concern about the contact schedule.[70] She gave some reasons for those concerns, referring to the impact on J. She denied she and her husband had created barriers to J having contact with his parents.[71]
[68] AB 29 - 30 [15].
[69] AB 30 [17].
[70] AB 30 [18].
[71] AB 30 [21].
Although generally denying that she and her husband had asked Ms Short to reduce or otherwise constrain J's contact with his parents, the appellant admitted that, when 'asked … whether a particular new proposed contact arrangement suits [their] work and family routine … [they] have provided regular and frank and forthright feedback in this regard'.[72] The appellant said she regarded ongoing contact with his parents as fundamental to J's sense of identity and belonging, and 'pivotal to any proposed reunification or care plan'.[73]
[72] AB 31 [26].
[73] AB 32 [30].
The appellant admitted that she and her husband had said words to the effect that they considered themselves to be J's family, but claimed that J's family also included his parents and their extended families.[74] She also admitted that she and her husband said words to the effect that they regarded it to be in J's best interests for the protection order to be extended and for J to remain in their care until he is 18 years of age.[75] However, she claimed her position was not fixed in respect of that issue, and would be subject to the information she may receive in the extension application proceedings.[76]
[74] AB 32 [31].
[75] AB 32 [32].
[76] AB 32 - 33 [32].
The appellant denied that she and her husband had said they strongly opposed the Department's efforts to continue seeking a family placement for J, or that she had disregarded, or claimed to be untrue, what Ms Short had said about the psychosocial research and evidence concerning long-term impacts on a child resulting from being removed from their parents.[77] The appellant claimed that what she said to Ms Short on the latter issue was that she understood the research related to children removed from their parents' 'established care' and did not necessarily relate to the removal of a baby from its parents' care at birth.[78]
[77] AB 33 [33] - [34].
[78] AB 33 [34].

Proceedings in the Children's Court

The extension application and joinder application were heard in the Children's Court on 16 May 2022. The appellant was represented by her solicitor, Ms Bromfield. The first respondent, who was the applicant in the extension application proceedings, and the second respondent were separately represented.
At the outset, the learned magistrate enquired of Ms Bromfield what the basis was for the application, indicating that he was puzzled and 'struggling to see where [the appellant] has an interest in the child'.[79] The following exchange followed:[80]
[79] AB 70.
[80] AB 70 - 71.
BROMFIELD, MS: So, your Honour, the application is made – to join the proceedings is made pursuant to section 147(e) - - -
HIS HONOUR: Yes.
BROMFIELD, MS: - - - whereby - - -
HIS HONOUR: 147(e).
BROMFIELD, MS: Whereby [the appellant] has a direct and significant interest in the welfare, care and development of the child.
HIS HONOUR: But I don't think she does. She's not a relative.
BROMFIELD, MS: Your Honour - - -
HIS HONOUR: She's – you know, I mean, whilst that reads fairly broadly, if you look at it one way, when you look at it in the context of the total legislation, the truth is your client is effectively employed by the department to provide a service - - -
BROMFIELD, MS: Your Honour, I disagree.
HIS HONOUR: - - - and that, I would have thought, basically means that she has no interest beyond that other than providing a safe environment for the child.
Ms Bromfield submitted that the appellant had a direct and significant interest in J's wellbeing, because J had come into her care as an infant, and the appellant had taken primary responsibility for meeting all of his needs and ensuring his development in the two and a half years since assuming care.[81] Ms Bromfield referred to the reasons of Corboy J in DL v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 71 (DL) and Jenkins J in PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 (PR) in support of the principle that, in determining whether a person's interest is direct and significant, the court should take into account a variety of matters, including the length of time that the person seeking to be joined has had a relationship or an interest in the wellbeing of the child, and the quality of the relationship or the interest in the wellbeing of the child. She submitted that the appellant had had an interest in the wellbeing of the child in this case for all but 10 weeks of the child's life, and that the child's primary attachment was to the appellant, as his carer.[82]
[81] AB 71 - 72.
[82] AB 72.
His Honour intervened, as follows:[83]
HIS HONOUR: Yes, but look, that's just plain wrong, though. She's an employed person to provide a service, and if she has developed an attachment, then she has, in fact, contravened the role that she has been paid to do. She's there to support the reunification of the child to its parents, and if she has decided to take it on herself or, indeed, just fallen in love with the child, as, of course, is certainly possible, and, in fact, promoted an attachment of the child to her, then she has gone way outside the responsibilities that she was given, and she has, in fact, inserted herself into the rights of the parents in a most inappropriate way.
Now, I'm not saying she has done that, but that's the implication from what you've just said, that she has had the child most of its life, that the child now has an attachment to her, and that she's not going to be asking for parental responsibility at this stage. Now, that sends shivers down my spine, Ms Bromfield. That should not be considered at all. This is a two-year protection order which the department is asking to be extended for a short period of time, and your client clearly disagrees with that. Your client clearly, from what I'm reading in the affidavits, is really saying, 'Look, this needs to be a long-term situation.'
[83] AB 73.

The magistrate's reference to the appellant not asking for parental responsibility was a reference to the possibility (which was not being pursued by the appellant) of an application by a carer under s 69A of the Act for the revocation of a protection order (time-limited) and the making of a protection order (special guardianship) in respect of the child under s 60 of the Act. Such an application may be made by an individual who has been the carer of the child, if the child has been the subject of a protection order (time-limited) or a protection order (until 18) for at least the period of two years immediately preceding the day on which the application is made.[84] A protection order (special guardianship) is an order giving an individual, or two individuals jointly, parental responsibility for a child until the child reaches 18 years of age.[85] While such an order is in force, the special guardian has parental responsibility for the child to the exclusion of any other person.[86] 'Parental responsibility' is defined in the Act to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.[87] Ms Bromfield noted, later in her submissions, that the appellant 'has standing in her own right, right now, to make an application for special guardianship', but that she was 'not doing that, in acknowledgement that she does not have sufficient information to form a view or a judgment'.[88]
[84] The Act, s 69A(1).
[85] The Act, s 60(1).
[86] The Act, s 60(3).
[87] The Act, s 3.
[88] AB 74.
In response to the magistrate's suggestion that the appellant 'clearly disagree[d]' with the extension application and wanted a long-term order, Ms Bromfield noted that the appellant had stated in her affidavit that she had no fixed position on that issue, as she had limited information on which to form a view.[89]
[89] AB 73.
The following exchange occurred soon after:[90]
MS BROMFIELD: Your Honour, you spoke in terms of attachment, and you spoke in terms of my client's role as foster carer and her duty. She is not an employee of the department.
HIS HONOUR: No, she's paid to provide a service for the department.
BROMFIELD, MS: She's paid a stipend for the purposes of supporting the child's needs, your Honour. She is not an employee.
HIS HONOUR: She is a general foster carer. She puts herself forward to do this. She is not a relative. She has no obligations to the child whatsoever and - - -
BROMFIELD, MS: Your Honour, the Act does not refer to 'relative carer', 'family carer'; it refers to 'carer'.
HIS HONOUR: Okay.
[90] AB 74.
After Ms Bromfield referred to her client's position in respect of an application for special guardianship, the following exchange occurred:[91]
[91] AB 75.
MS BROMFIELD: [The appellant] has not created an attachment in this child, nor has she somehow sought to take advantage of his attachment.
HIS HONOUR: I'm not suggesting that.
BROMFIELD, MS: His attachment is a natural function - - -
HIS HONOUR: What I am saying, though, is that her role in the process is to simply provide for the child for her – her role is to provide for the child in the context of reunification.
BROMFIELD, MS: Section 147(e), as it has been passed by Parliament, says that - - -
HIS HONOUR: I know what it says. You don't need to repeat it again.
BROMFIELD, MS: - - - she has standing in the proceedings - - -
HIS HONOUR: You've said it a number of times, Ms Bromfield.
BROMFIELD, MS: Well, your Honour, is it the case – if she meets the definition of 'direct and significant interest in the welfare and development of the child,' the next question becomes is there some kind of other discretion – so if the court is satisfied of that, the question becomes is there some kind of discretion on the part of this court to nonetheless – tick that box, but nonetheless determine that she doesn't have standing in these proceedings? Well, Corboy J says no. His very compelling analysis – and I refer you – bear with me.
Counsel for the first respondent then interposed a submission, which is not relevant for present purposes. The following exchange then occurred immediately before the magistrate gave his decision. I have set it out in full, as it is relevant to the issue of whether the appellant was denied procedural fairness:[92]
[92] AB 76 - 78.
BROMFIELD, MS: I cannot rule out the possibility between now, when the child is two and a half years old, and the child turning 18, that my client may make an application for a special guardianship order. It is not within her contemplation right now.
HIS HONOUR: But here's the nonsense of your client's position. I can put that on hold – this application on hold for a moment, ask Mr Currie, 'What do the parties want to do,' and if, as you say, the parties wish the matter to be wrapped up today, then I make an order and that's it. Finished. Over. Your application slips away.
BROMFIELD, MS: Your Honour, a decision not to make a decision – a decision to put my application on hold and not to give it due process and hear it out and make a decision is a decision.
HIS HONOUR: Well, I'm happy to make the decision.
BROMFIELD, MS: I would - - -
HIS HONOUR: I'm refusing the application.
BROMFIELD, MS: I would like to take you through the relevant precedent and analysis of - - -
HIS HONOUR: I know what they are.
BROMFIELD, MS: - - - Supreme Court Corboy J.
HIS HONOUR: Jenkins J's decision was against – ruling was against a decision of mine, so I know what it says. Now, frankly, I think this is distinguished very clearly from that one. I think that was a grandparent, as I recall, and - - -
BROMFIELD, MS: Your Honour, I'm talking about the decision in DL v Chief Executive Officer - - -
HIS HONOUR: Well, in any event - - -
BROMFIELD, MS: - - - the decision of Corboy J. Will you give me the opportunity to take you through his analysis, which forms the basis of my client's application and my submissions today?
HIS HONOUR: No. I've read that decision too and I don't need you to lead me through it. The simple fact is the parties in this application – substantive application, wish the matter to be resolved today, and it will be. That is the main application.
BROMFIELD, MS: Your Honour - - -
HIS HONOUR: It's an application for an extension - - -
BROMFIELD, MS: To clarify - - -
HIS HONOUR: - - - and they're consenting to it, so - - -
BROMFIELD, MS: - - - you are denying – you are denying me the opportunity to make submissions in support of this application and refer you to relevant case law?
HIS HONOUR: I am. I am - - -
BROMFIELD, MS: In making a decision - - -
HIS HONOUR: - - - because the application – the substantive application is in a position to resolve this very moment.
BROMFIELD, MS: Your Honour, my client made this application as soon as this application was made by the department. It is, in fact, the department that did not tell me what their position was until the directions hearing on 23 March, and thereafter, the capacity of the court that took this matter forward to May.
His Honour then made the decision and gave reasons immediately, as follows:[93]
HIS HONOUR: Look, I am absolutely of the view that a foster carer in these circumstances is simply a paid agent of the department to provide a service. It is not that person's role to be developing attachments. It is not that person's role to interfere in the reunification plans and the rights of a child to be with its natural parents. That's a fundamental right which obviously can be set aside if there's incapacity on the part of the parents to be those protective parents that are required, but the department – the applicant in this case has the view that the parents are in the process of dealing with their issues and to have a paid agent of the department, a person who has no relationship to the child whatsoever other than by virtue of that paid relationship, is not a person who I consider to have a direct and significant interest in the wellbeing of the child.
[93] AB 78.
His Honour dismissed the joinder application and made the extension order sought by the first respondent.
On 23 May 2022, Ms Bromfield emailed the Children's Court requesting a sealed order regarding the dismissal of the joinder application. The following day, the Children's Court confirmed by email that the joinder application was dismissed, but asserted that '… the dismissal of an application is not an order. As such it cannot be extracted.'[94]
[94] AB 81.
As I noted above, the appeal notice was filed on 13 June 2022.

Statutory framework – protection proceedings

In setting out the history of this matter above, I referred to a number of statutory provisions that were relevant to the protection proceedings in the Children's Court. It is appropriate to set out the statutory framework in a manner that provides context for the issues that need to be determined.
It is apt to note, by way of overview, that the provisions in the Act concerned with procedures for the protection and care of children who are considered to be in need of protection are substantially contained in pt 4 and pt 5 of the Act. Those parts provide for applications to, and proceedings in, 'the Court', which is defined in s 3 of the Act to mean the Children's Court.[95]
[95] By s 5 of the Interpretation Act 1984 (WA), 'Children's Court' means 'the Children's Court of Western Australia established by the Children's Court of Western Australia Act 1988'.
Part 4 of the Act is headed 'Protection and care of children' and is concerned, among other things, with the circumstances in which children may be taken into care by the CEO, the CEO's obligations in relation to a child taken into care, the orders that may be sought for the protection of a child taken into care, the placement of a child with carers, and the assessments and plans that must be made for the care of a child. I have discussed above a number of the provisions that are relevant in this case. Part 4 contains the provisions concerning the making of applications for protection orders.
Part 5 of the Act is headed 'Protection proceedings'. That term is defined in s 3 of the Act to mean 'proceedings in respect of, or in connection with, a protection application or other application to the [Children's Court] under Part 4'.[96] 'Protection application' is defined in s 3 to mean 'an application to the [Children's Court] for a protection order (other than an order under s 69A)'.[97]
[96] The definition excludes applications under three provisions in pt 4 that are concerned with payments to guardians, maintenance and recovery of expenditure, which are not relevant.
[97] An application for an order under s 69A is an application to replace a protection order (time-limited) with a protection order (until 18).
While the overarching purpose of pt 5 of the Act is to deal with protection proceedings, those proceedings are commenced by applications under pt 4, being applications for protection orders. There are various other applications referred to in pt 5 that may be made in the course of protection proceedings. Examples include: applications to adjourn (s 132(1)); applications for interim orders and for variation or revocation of such orders (s 133(2A), s 133(2B) and s 134(1)); applications for access warrants (s 135(3)); an application for an order requiring a person to give evidence (s 136B); and an application for a parentage testing order (s 136C).
In general terms, pt 5 of the Act deals with procedures and orders that may be made in protection proceedings, including in respect of reports that a court may require, and information that must be provided to the court by the CEO in such proceedings. Section 147, which is central to this appeal, is in pt 5.
I will now turn to more specific aspects of the statutory framework that outline the course of protection applications and protection proceedings. I have gratefully adopted much of the outline of the statutory framework given by Corboy J in DL,[98] with some additional details and analysis.
[98] DL [13] - [19].
Section 28 of the Act specifies the circumstances in which a child may be in need of protection. Those circumstances include where the child has suffered, or is likely to suffer, harm as a result of neglect or the child's parents being unable to provide adequate care for the child.[99]
[99] The Act, s 28(2)(c)(v), s 28(2)(d)(i).
Section 37 of the Act permits an officer who has been authorised by the CEO, or a police officer, to take a child into provisional protection and care if the officer suspects, on reasonable grounds, that there is an immediate and substantial risk to the child's wellbeing. By s 38 of the Act, the CEO is required to determine whether a protection order should be made in relation to a child taken into provisional protection and care, or whether the child should be returned to a parent or other person responsible for the child's care.
Section 44 of the Act prescribes the procedure for making an application for a protection order. Such an application can be made only by the CEO.[100] The section obliges the CEO to give a copy of the application to the child, a parent of the child and any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.[101] In relation to an extension application, the CEO must give a copy of the application to 'all other parties to the initial proceedings',[102] being persons who were parties to the protection proceedings in which the existing protection order was made.[103] It appears that the appellant was not served with either the initial application for a protection order (time-limited) or with the extension application.[104] There was no obligation on the CEO to serve the extension application on the appellant, because she was not a party to the initial proceeding. However, the appellant was informed by the Department of the CEO's intention to make the extension application, and it appears her lawyer was subsequently informed when the extension application was made.[105]
[100] The Act, s 44(1).
[101] The Act, s 44(5).
[102] The Act, s 69(4).
[103] The Act, s 42 (definition of 'party to the initial proceedings').
[104] AB 28 [7].
[105] AB 36, 39.
The Children's Court may make a variety of protection orders: a protection order (supervision);[106] a protection order (time-limited);[107] a protection order (until 18);[108] and a protection order (special guardianship).[109] The order sought and obtained in this case was a protection order (time-limited), the effect of which is described in [3] above. The period specified in such an order must not exceed two years.[110]
[106] The Act, s 47.
[107] The Act, s 54.
[108] The Act, s 57.
[109] The Act, s 60.
[110] The Act, s 55(2).
Section 45 of the Act provides that, if, on a protection application, the court finds that the child is in need of protection, it may, subject to pt 4 of the Act, make the protection order sought or make another protection order in respect of the child. Therefore, procedurally, it was open to the court in this case to make a different protection order from the order that was sought (being an extension of the protection order (time-limited)).
It is appropriate to note that s 7 and s 8 of the Act set out overarching principles that must be applied by the court in dealing with matters under the Act. Those principles, as well as further principles set out in s 9 of the Act, are consistent with the objects of the Act in s 6, which include to promote the wellbeing of children, to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children, and 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.
Section 7 provides that, in performing a function or exercising a power in the Act, the paramount consideration is the best interests of the child. Section 8 specifies a number of matters that must be taken into account in determining what is in the best interests of a child. Those matters include the nature of the child's relationship with his or her parents, siblings and other relatives, and with any other people who are significant in the child's life; 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 the child's parents, a carer or other person (including a child) with whom the child is, or has recently been, living, or any other person who is significant in the child's life; and the need for the child to maintain contact with people who are significant in his or her life.
Section 9 sets out numerous other principles that must be observed 'in performing a function under [the Act]'.[111] It is sufficient to note that, generally, they elaborate matters that would be regarded as relevant to the wellbeing and best interests of the child, including stability in the child's living arrangements, and include the following:
(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child.
[111] In CD & EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126 [46], Pritchard J noted that there are differences of view as to whether the obligation in s 9 applies to judicial proceedings (referring, for example, to the discussion in Farnell v Chanbua [2016] FCWA 17 [649] (Thackray CJ) and the cases cited therein). Her Honour noted, however, that the principles in s 9 overlap with the objects of the Act and the other principles set out in the Act.
Obviously, the principles specified in (a) and (b) need to be considered in the context that the very circumstances in which a child has been taken into protection may involve neglect by the child's parents, or an inability by them to properly care for the child, and the principles are subject to the paramount consideration, namely, the best interests of the child. However, it is apparent that the principles specified in (a) and (b) underpinned the approach taken by Ms Short, including her opposition to the appellant being joined as a party to the protection proceedings.
As I have already noted, pt 5 of the Act governs protection proceedings. The CEO is required to provide the court with a s 143 proposal, as discussed at [6] and [9] above, and the court must consider any such proposal before making an order. The court has power to make interim orders, including orders that: the child be returned to, or placed or remain with, a parent of the child (s 133(2)(a)); the CEO make a secure care arrangement in respect of the child (s 133(2)(ca)(i)); and the child be placed with a person approved by the court following a report, whether oral or written, from the CEO as to the person's suitability (s 133(2)(c)). The court may also make orders regarding contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life (s 133(2)(f)), and on any other matter that the court considers appropriate (s 133(2)(g)).
Section 145 provides that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.[112] They 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,[113] and they are to be conducted, as far as possible, in a way that promotes cooperation and consensus.[114] Section 146 provides that the court is not bound by the rules of evidence in determining protection proceedings.
[112] The Act, s 145(1).
[113] The Act, s 145(3).
[114] The Act, s 145(4).

Section 147, which was key to the appellant's application to be joined as a party to the protection proceedings, provides:
147.Parties to the proceedings
In protection proceedings each of the following people is a party to the proceedings –
(a) the child;
(b)each parent of the child;
(c)the CEO;
(d)if the proceedings relate to a protection order (special guardianship) - the special guardian or proposed special guardian;
(e)any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.
The expression 'wellbeing of a child' is defined by s 3 of the Act to include: the care of the child; the physical, emotional, psychological and educational development of the child; the physical, emotional and psychological health of the child; and the safety of the child.

The appellant's right to appeal

The second respondent raised a preliminary issue as to whether this court has jurisdiction to hear an appeal against a refusal of a Children's Court magistrate to join a person as a party to protection proceedings. As I noted earlier, the second respondent submitted that the appeal is incompetent, as it does not fall within any of the statutory categories of appeal in respect of which this court has jurisdiction. This jurisdictional issue was dealt with by Jenkins J in PR. The second respondent submitted that I should not follow her Honour's decision, as a matter on which the second respondent relies was not considered by her Honour. It is necessary, therefore, to examine the relevant legislative provisions, the analysis in PR (and in DL, which followed PR) and the second respondent's submission.
The appeal purports to be brought under pt 2 of the Criminal Appeals Act, which provides, in s 7(1):
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
Section 7(4) of the Criminal Appeals Act provides that, except as provided by s 7, no appeal lies against a decision of a court of summary jurisdiction. Section 7(5) provides that subsections (1) and (4) are subject to any other written law, in particular pt 5 of the Children's Court of Western Australia Act 1988 (WA) (CCWA Act).
For the purposes of pt 2 of the Criminal Appeals Act, s 6 defines the term 'decision, of a court of summary jurisdiction' as meaning any of nine forms of decision, order, or refusal to make an order, all of which are specific to the criminal jurisdiction. None of them are relevant for present purposes.[115] However, the definition applies 'unless the contrary intention appears'. The contrary intention appears by virtue of s 7(5) of the Criminal Appeals Act, which refers to pt 5 of the CCWA Act.
[115] PR [28].
Part 5 of the CCWA Act provides for review of, and appeals from, decisions of the Children's Court. Section 41 of the CCWA Act provides:
41.Appeals against decisions of magistrates etc.
Subject to this Part, an appeal against a decision of the Court when constituted so as not to consist of or include a judge may be made under and subject to Part 2 of the Criminal Appeals Act2004.
'Decision', as used in s 41, is not defined. To the extent that a decision appealed under that provision is from the criminal jurisdiction of the Children's Court, the definition of 'decision' in s 6 of the Criminal Appeals Act would apply.
Section 42(1) of the CCWA Act deals specifically with proceedings under the Act. It provides, relevantly:[116]
42.Appeal against certain other orders
(1) Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the Children and Community Services Act 2004 the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction, by —
(a) the CEO as defined in section 3 of the Children andCommunity Services Act 2004; or
(b)the parent or guardian of the child in relation to whom the application was made; or
(c) the child in relation to whom the application was made; or
(d) the person by whom the application was made.
[116] Section 42(2) is not relevant.
As Corboy J noted in DL, pt 2 of the Criminal Appeals Act is not especially well suited to appeals from orders made under the Act,[117] but that is the statutory framework within which such appeals must be determined. Section 8(1) of the Criminal Appeals Act provides that an appeal may be made on several grounds, including that the court made an error of law or fact, or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice. As Corboy J also noted in DL:[118]
Section 14 of the [Criminal Appeals Act] confers power on this court to make various orders to dispose of an appeal. Those orders include setting aside or varying the decision of the court below; substituting a decision that should have been made by the court; remitting the case to be dealt with again by the court, with or without orders as to how or by whom the court is to be constituted or as to how the court must deal with the case; and making any other order that this court thinks fit. The power conferred by each of those alternatives is not unfettered; the powers are to be exercised judicially in the court's appellate jurisdiction.
[117] DL [25].
[118] DL [26].
Returning to the jurisdictional issue, the appellant's submissions were to the effect that, notwithstanding s 6 of the Criminal Appeals Act, the term 'decision' in s 7(1), when considered with s 42(1) of the CCWA Act, should be interpreted broadly to include the magistrate's decisions in this case refusing the appellant's joinder application and making the extension order. The appellant submitted that she is a person who is aggrieved by those decisions. Her submissions suggested that she has a right to appeal under s 7(1) of the Criminal Appeals Act, and that the appeal is competent under that provision. With respect, the appellant's submissions are misconceived. The proviso in s 7(5) brings within pt 2 of the Criminal Appeals Act appeals instituted under s 42(1) of the CCWA Act, notwithstanding the limitations that subsections (1) and (4) of s 7 place on the right of appeal under pt 2. Section 7(5) does not enlarge the application of s 7(1) to decisions other than as defined in s 6. Rather, s 7(5) overcomes the inconsistency that would otherwise exist between subsections (1) and (4) of s 7 on the one hand, and s 42(1) of the CCWA Act on the other. That distinction is important, because, for the appeal to be competent, it is not sufficient for the appellant to show that she is a person who is aggrieved by the decision of the magistrate.[119] As will appear below, she must come within one of the categories of persons who are given a right of appeal under s 42(1) of the CCWA Act.[120]
[119] In this context, the appellant referred to the capacity of a non-party to apply to be joined as a party to a civil action, pursuant to O 18 r 6(2) and r 6(3) of the Rules of the Supreme Court1971 (WA), and the right of the non-party to seek leave to appeal in respect of the interlocutory decision if the application fails. The analogy is inapt, given the specific legislative provisions applicable in this case.
[120] Pacy v CEO Department for Child Protection [2008] WASC 257 [7] - [9], on which the appellant appeared to rely in support of her submission, does not establish any contrary proposition. The appellant also relied on Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327; (2014) 87 NSWLR 1, in which the Supreme Court, and the tribunals below, did not question the standing of the Commissioner of Police to appeal against a decision of the Civil and Administrative Tribunal (NSW) refusing to join him as a party in review proceedings in the Tribunal. In my respectful opinion, the authority does not assist the appellant in this case, because of the very different statutory scheme, including the fact that there was specific provision for the Tribunal to order joinder. Moreover, the absence of a challenge to standing in that case could not inform the resolution of the issue in this case, in which the competency of the appeal has been challenged.
For the appeal to be competent, it must come within s 42(1) of the CCWA Act. Having regard to the text of the provision, for an appeal to be competent under s 42(1), the court must answer all of the following questions in the affirmative:
(1)Is the appeal in respect of a finding, order, or other decision?
(2)Was the finding, order, or other decision made on the hearing of an application under pt 4 or pt 5 of the Act?
(3)Is the appeal brought by a person who falls into one of the categories listed in paragraphs (a) to (d)?
The last question reflects the fact that s 42(1) confers the right of appeal on a limited group of persons. As Smith J noted in JD v The Department of Communities [2021] WASC 218 (JD), not every person who is aggrieved by a finding, order, or other decision made under pt 4 or pt 5 of the Act is conferred standing to institute an appeal (in other words, the right to bring an appeal).[121]
[121] JD [24].
In PR, the appeal was by the grandmother of the child, from the decision of the Children's Court refusing her application to be joined as a party to protection proceedings in respect of the child. Justice Jenkins identified that there was a preliminary jurisdictional issue, although it had not been raised by the parties to the appeal. Her Honour concluded that the Supreme Court did have jurisdiction to hear an appeal from such a decision. However, her Honour's analysis dealt with only the first two questions set out at [98] above. It would seem her Honour proceeded on the assumption that the joinder application in the Children's Court was properly to be regarded as an application under pt 5 of the Act, for the purposes of s 42(1) of the CCWA Act. In those circumstances, for the purposes of s 42(1)(d), the appellant in that case was the person by whom the application was made. Her Honour's focus, therefore, was on whether the Children's Court refusal to join the appellant in that case as a party to the protection proceedings was an appellable decision.
The second respondent in this case has submitted there is an antecedent question to be determined, namely, whether the magistrate's refusal to join the appellant to the protection proceedings was 'on the hearing of an application under pt 5' for the purposes of s 42(1), or whether it should be properly regarded as a decision in respect of an interlocutory issue 'on the hearing of an application under pt 4', being the extension application. If the latter, then the appellant was not the 'person by whom the application was made', and she would have no standing under s 42(1) to bring an appeal. This requires consideration of whether the process by which a person asks the Children's Court to determine if the person meets the criteria in s 147(e) of the Act, involves an application under pt 5 of the Act. In the second respondent's submission, the fact that the appellant in this case filed a form headed 'Application in a proceeding',[122] which is provided by the Children's Court, is not determinative of that issue.
[122] AB 15.
As Jenkins J did not deal directly with the third question in [98] above, her Honour's reasons, which I will outline below, do not provide guidance as to the answer to the questions that have been raised by the second respondent in the present case.
I note that the first respondent did not challenge the competency of the appeal, relying on PR and DL as cases that establish the court does have jurisdiction to hear the appeal.
I turn to the first question to be considered under s 42(1) of the CCWA Act. As Jenkins J observed in PR, for an appeal to be competent against a magistrate's refusal to join a person as a party under s 147 of the Act, the refusal must be 'a finding, order or other decision on the hearing of an application under pt 4 or pt 5 of the Act'.[123] If it is, then s 42(1) of the CCWA Act gives a right of appeal to this court against such a refusal.
[123] PR [28].
Justice Jenkins identified the issues in PR as follows:[124]
There are two sub-issues involved in the jurisdictional issue. One is whether a refusal to make an order can be a finding or other decision. Another is, if it is, whether it was made on the hearing of an application under the Act pt 4 or pt 5, that is whether it is competent to appeal from what is essentially an interlocutory decision of the Children's Court made pursuant to the Act.
[124] PR [30].
It can be seen that her Honour did not identify the third issue, namely, whether the appellant was someone on whom the right of appeal was conferred by s 42(1) of the Act.
In dealing with the first issue under s 42(1), her Honour was of the view that, although s 147 was 'unusually expressed in the positive', there was at least an implication that it empowered the Children's Court to make an order that a person be joined as a party to a protection proceeding if they meet the criteria in s 147.[125] In my respectful opinion, that construction is open in respect of s 147(e) and should be followed. As I will discuss below, s 147(e) requires the court to form an opinion, and thereby make a determination, as to whether a person has a direct and significant interest in the wellbeing of the child. The outcome of that determination affects the person's right to be a party to the protection proceedings. The Children's Court is a court of record.[126] The appropriate record where the court determines that a person has the relevant interest is an order that the person be joined as a party.
[125] PR [32].
[126] CCWA Act, s 5(3).
I will deal later with the question of whether an application by a person to be joined as a party, pursuant to s 147(e) of the Act, is an application for the purposes of s 42(1) of the CCWA Act.
Justice Jenkins went on in PR to provide the following analysis, with which I respectfully agree, as to why interlocutory orders in protection proceedings may be subject to appeal under s 42(1) of the CCWA Act:[127]
Section 147 is contained in pt 5 of the Act. Part 5 deals primarily with the procedure to be followed by the parties in the Children's Court in protection proceedings.
In pt 5, the only final order which the court is empowered to make is an order to dispose of frivolous and vexatious protection proceedings. Consequently, if Parliament's intention had been to simply to grant a right to appeal against such a final order, there was no need to refer generally to pt 5 in the [CCWA] Act s 42(1). I infer that parliament did not intend the right of appeal given by the [CCWA] Act s 42(1) to be limited to findings, orders or other decisions related to applications to finally determine protection proceedings.
In order to give the [CCWA] Act s 42(1) meaning, it must include the right to appeal findings, orders or decisions made in respect to applications for interlocutory orders in protection proceedings, such as orders for the joinder of parties.
[127] PR [32] - [34].
Her Honour's reference to 'applications for interlocutory orders … such as orders for the joinder of parties' shows that her Honour regarded the application in that case as one made under pt 5 of the Act. However, while her Honour had concluded that, by implication, s 147(e) of the Act conferred a power on the court to make an order joining a party to proceedings, her Honour had not considered whether it also conferred a right on a person to make an application for such an order.
Having concluded that s 42(1) of the CCWA Act included the right to appeal findings, orders or decisions made in respect to applications for interlocutory orders in protection proceedings, Jenkins J then dealt with the question of whether a refusal to make the order sought in a joinder application is 'a finding, order, or other decision' for the purposes of s 42(1) of the CCWA Act:[128]
However, the magistrate did not make the order applied for by the appellant, rather he refused to make such an order. Is a refusal of an application for an order joining a person as a party a 'finding, order or other decision' for the purposes of the [CCWA] Act s 42(1)?
It does not appear to me that a refusal to make an order is a finding, as that word would usually be defined. As to the term 'order', in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210, Spigelman CJ of the New South Wales Supreme Court determined that:
In its natural and ordinary meaning the word 'order' would not encompass a refusal to make an order.
He continued on to explain why that was so.
I perceive that the legislature, in using the phrase, 'any finding, order or other decision' on the hearing of an application under pt 4 or pt 5 of the Act, has used a particularly broad phrase, which appears designed to avoid the controversies that were referred to in Roslyndale Shipping as to the meaning of the word 'order'.
It seems to me that I am justified in relying upon the decision of the State of Western Australia v JJS (a child) (2004) 145 A Crim R 403, where the Full Court of this State considered whether a dismissal by the President of the Children's Court of an application by the prosecution for compensation orders in respect to offences of criminal damage was a 'decision' as to the jurisdiction of the Children's Court.
At that time the [CCWA] Act s 43(1) provided that in criminal proceedings an appeal lay from a 'decision' of the Children's Court. A 'decision' was defined to be a decision relating to certain specified matters. Nevertheless, the question before the Full Court was whether a refusal of the President of the Children's Court to make a compensation order was a decision. By a majority, the Full Court determined that it was a decision.
I conclude that the magistrate's refusal to make an order joining the appellant as a party amounts to 'any other decision' made on the application for an order under pt 5 of the Act. I therefore am of the view that the appeal is competent and I am prepared to determine it on its merits.
[128] PR [35] - [41].
I respectfully agree with her Honour's analysis in those paragraphs, with the following qualification. I will assume at this stage that s 147(e) confers a right to make a joinder application, with which I will deal below. While the magistrate's decision to refuse a joinder application is a decision that follows from a negative determination under s 147(e), that provision requires the Children's Court to make a finding as to whether the person has a direct and significant interest in the wellbeing of the child. It seems to me, therefore, that while the refusal to make the order sought is not a finding (as Jenkins J noted), s 147(e) does involve a finding, as that term would be understood in s 42(1) of the CCWA Act.
It is appropriate to note that, while Jenkins J was satisfied that the Supreme Court does have jurisdiction to hear an appeal from the refusal of a joinder application in protection proceedings, her Honour observed that restraint might be exercised in such cases, as follows:[129]
This is not to say that the interlocutory nature of such a decision is irrelevant to whether leave to appeal should be granted in respect to a proposed ground of appeal. I would expect that the well-established reluctance of courts of appeal to interfere in proceedings whilst they are on foot, except in clear cases warranting such intervention, would apply to appeals from interlocutory decisions of Children's Court magistrates under the Act: Hughes v Gales (1995) 14 WAR 434, 439.
[129] PR [42].

In summary, having regard to the legislative scheme as a whole, and the principles outlined in PR and DL, as discussed above, and for reasons I have given in outlining the legislative scheme and the principles, the learned magistrate erred in law in the application of the relevant test.
The appellant's evidence in support of her joinder application, outlined above, established that she had provided for J's physical, psychological, educational and day-to-day needs since February 2020. As the first respondent conceded, this was evidence of a direct and significant interest (being an 'objective concern') in J's wellbeing.[161] On the basis of that evidence, the only reasonable conclusion under s 147(e) was that the appellant had such an interest and was deemed by s 147 to be a party to the protection proceedings. The learned magistrate erred in fact in concluding to the contrary. It follows that Ground 2 of the appeal is also made out.
[161] First respondent's outline of submissions filed 21 October 2022, 11 [49].
I would add, with all due respect, that his Honour's concerns about a carer's attachment to a child, and a child's corresponding attachment to his carers, were misplaced. As I noted in outlining the facts, the s 143 proposal appeared to acknowledge that an attachment was to be expected in the child's circumstances, and would be taken into account in the care plan. Further, as I noted in referring to the matters stipulated in s 8 of the Act that must be taken into account in determining the best interests of the child, one such matter is 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 the child's carer or other person (including a child) with whom the child is, or has recently been, living. It seems to me that is a statutory acknowledgement that attachments may develop between foster carers and children in their foster care. It is a matter of human nature. That is not to say that such attachments should interfere with plans to reunify a child with its parents. As I said earlier in these reasons, carers must be mindful of the conditions on which a foster placement has been made, including the need to accommodate the measures in place for reunification. However, in my opinion, in asserting that 'it is not [a carer's] role to be developing attachments',[162] the magistrate took into account an irrelevant consideration.
[162] AB 78.
It follows from my conclusions, outlined above, that leave should be granted in relation to Grounds 1 to 4. Further, each of those grounds has been made out.

Consideration of the proviso in relation to Grounds 1 to 4

Section 14(2) of the Criminal Appeals Act provides that, '[d]espite subsection (1)(b)', which is to the effect that, in deciding an appeal, the Supreme Court may allow the appeal, 'even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.' I will refer to the provision as 'the s 14(2) proviso'.
The appellant and the first respondent submitted that it would not be appropriate to apply the s 14(2) proviso in the circumstances of this case. The second respondent conceded that, if this court were to find that the appellant ought to have been joined as a party to the protection proceedings, then the magistrate acted without jurisdiction in hearing and deciding the extension application without the appellant as a party. As I will explain below, I have concluded that the submissions of the appellant and the first respondent are correct, and that the concession by the second respondent is properly made. However, it is necessary for me to give reasons, by reference to relevant authorities, as I consider that there is a need for clarification of the manner in which s 14(2) should be applied in an appeal under pt 5 of the CCWA Act, and why the 'want of jurisdiction' issue is relevant to the application of s 14(2) in this case.
I have not been able to find any authority that considers the application of the s 14(2) proviso in an appeal of the present kind. The s 14(2) proviso is in the same terms as the proviso in s 30(4) of the Criminal Appeals Act, which applies in any appeal under pt 3 of that Act against a conviction on indictment, whether in a jury trial or a trial by judge alone. Both provisions are in similar terms to what is referred to in the authorities as the common form criminal statute proviso ('the common form proviso'), whereby an appeal from a conviction in a jury trial may be dismissed on the basis that the court considers that no substantial miscarriage of justice has occurred (or 'actually occurred'[163]), notwithstanding a finding that the trial was affected by an error of law. There is authority in respect of the principles relevant to the application of the common form proviso in criminal appeals.[164] There is also authority in respect of the principles relevant to the application of s 14(2) in appeals from the Magistrates Court in the criminal jurisdiction.
[163] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 (Weiss) [9] - [10].
[164] For instance, Weiss and AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 (AK).
To the extent that those authorities refer to aspects of the appeal process that are specific to a conviction in a criminal trial or a sentence after conviction, the principles expounded are not directly applicable to an appeal from a decision in a matter that is not in the criminal jurisdiction of the Children's Court, and indeed may be inapt. However, as I will indicate, some of the principles may be relevant by analogy, and, in any event, may provide guidance as to the proper approach in an appeal under pt 5 of the CCWA Act.
In Weiss, the High Court said that, in considering the proviso in an appeal against conviction, three fundamental principles must not be obscured:[165]
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
[165] Weiss [39].
The last of those principles is inapplicable to the present appeal. However, in my opinion, the first two principles are apt in any case involving the application of the proviso. In particular, consideration of the proviso is not an exercise in speculation or prediction.
The court went on in Weiss to say that the court's task in considering the proviso in an appeal against conviction is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.[166] The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.[167] However, while it was a precondition to the application of the proviso that the appellate court be persuaded of the accused's guilt in that way,[168] the High Court held that it is 'neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier'.[169]
[166] Weiss [41].
[167] Weiss [41].
[168] Weiss [44].
[169] Weiss [42].
Having noted the permissive formulation of the common form proviso (as it is in s 14(2) of the Criminal Appeals Act), which empowers, but does not oblige, the court to dismiss the appeal, the High Court also said in Weiss that:[170]
… no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso [referring to Wilde v The Queen (1988) 164 CLR 365 at 373 (Wilde)].
[170] Weiss [45] - [46].
In AK, although the court was divided in the outcome of the appeal, all members of the court accepted as a matter of principle that some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they preclude the application of the proviso, even if the appellate court were to be persuaded of the accused's guilt to the criminal standard upon examination of the trial record.[171] Justices Gummow and Hayne emphasised the need to avoid trying to identify universally applicable criteria, noting that:[172]
… what was said in [Wilde] about the possibility that some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presupposition of the trial as to deny the application of the proviso is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. Rather, as both Wilde and Weiss acknowledged, the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances. What was said in Wilde did no more than advert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical.
In every case it will be necessary to consider the application of the proviso … taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal.
[171] AK [23] (Gleeson CJ and Kiefel J); [54] (Gummow and Hayne JJ); [87], [110] (Heydon J).
[172] AK [54] - [55].
Their Honours' reference to 'radical' errors reflected the language in the reasons of Brennan, Dawson and Toohey JJ in Wilde, where their Honours stated that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all', and it does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings', so that 'the accused has not had a proper trial and … there has been a substantial miscarriage of justice'.[173] In AK, the majority (Gummow, Hayne and Heydon JJ) concluded (in the context of an appeal from a trial in the Children's Court) that the trial judge's failure to provide adequate reasons as to the factual basis for finding the accused guilty, as required by s 120(2) of the Criminal Procedure Act 2004 (WA), was an error of a kind as to preclude the application of the proviso under s 30(4). In his reasons, Heydon J utilised the language from the reasons of the plurality in Wilde, stating (citations omitted):[174]
[G]iven the importance of the requirement of a statement of findings in a factually unusual and puzzling case, and the extent of the breach of that requirement, the proviso should not be applied. The error was one which was a sufficiently 'serious breach of the presuppositions of the trial' to go to 'the root of the proceedings'.
[173] Wilde, 373. See AK [87] (Heydon).
[174] AK [110].
The principles referred to by the High Court in Weiss and AK have been applied by this court in considering the s 14(2) proviso in the context of appeals from convictions in criminal trials in the Magistrates Court.[175] However, in WS v Gardin [2015] WASC 97; (2015) WAR 494, Mitchell J (as his Honour then was) was of the view that the differences between the common form criminal appeal statute and s 8 and s 14 of the Criminal Appeals Act meant that 'there should be no automatic transposition of rulings made under the common form proviso to s 14(2) of the [Criminal Appeals Act].'[176] It is not necessary for present purposes to refer to all of differences identified by his Honour. It is sufficient to note, as his Honour did,[177] that s 8 and s 14 of the Criminal Appeals Act are not confined to appeals against criminal convictions. His Honour noted that those provisions 'operate in relation to a broader range of decisions referred to in s 6 of the [Criminal Appeals Act]'.[178] It must be added, of course, that they also operate in relation to appeals from the non-criminal jurisdiction of the Children's Court under pt 5 of the CCWA Act, by virtue of s 7(5) of the Criminal Appeals Act.
[175] See, for instance, Smith v Richardson [2013] WASC 114 (Simmonds J) [322] - [323]; Rodrigues v Ainsworth [2014] WASC 101 (Le Miere J) [53] - [54]; Crosswell v Ainsworth [2014] WASC 186 (Allanson J) (Crosswell) [39] - [40].
[176] WS v Gardin [223] - [229].
[177] WS v Gardin [228].
[178] WS v Gardin [228].
For the same reasons he gave in respect of the common form proviso, Mitchell J was also of the view that, while the approach in Weiss had been applied in relation to s 30(4) of the Criminal Appeals Act,[179] it did not follow that the same approach should be applied under s 14 of the Criminal Appeals Act, given the differences between pt 2 and pt 3 of that Act. However, in deciding that there should not be automatic transposition of principles, Mitchell J was not suggesting that the principles expounded in the context of the common form proviso, or s 30(4) of the Criminal Appeals Act, are irrelevant to determining the way in which s 14(2) should be applied. For instance, his Honour was of the view that the 'negative proposition' in Weiss would require modification in applying it to s 14(2), not that it was wholly inapplicable.[180] On the other hand, his Honour noted that some of the statements of principle in respect of the common form proviso were wholly inapplicable to determining an appeal against sentence, acquittal, consequential orders and costs.[181]
[179] WS v Gardin [236], referring to AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438.
[180] WS v Gardin [231], referring to the passage alluded to at [172] above, where the High Court said, in Weiss (at [44]): 'It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.'
[181] WS v Gardin[231].
Further, in the context of the circumstances of WS v Gardin, which was concerned with factual errors made by the magistrate in finding the appellant guilty, Mitchell J was of the view that, where the reasons of a summary court indicate that the court made an error of fact, the Supreme Court could conclude there was no substantial miscarriage of justice if 'the error was inconsequential or immaterial to the decision to convict', irrespective of whether the Supreme Court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record.[182]
[182] WS v Gardin [239].
In the context of appeals from the Magistrates Court against sentence, the Court of Appeal has said, referring to Weiss, that the task of the court in determining whether there has been any substantial miscarriage of justice, for the purposes of s 14(2) of the Criminal Appeals Act, 'is to make its own decision about the correct sentence'.[183] In Powell v Tickner [2010] WASCA 224, McLure P formulated the test in terms of whether 'the error resulted in an inappropriate sentence',[184] and Buss JA in terms that 'if, despite the magistrate's errors, a different sentence should not have been imposed, then no substantial miscarriage of justice, within s 14(2), would have occurred' and the appeal (at first instance, before a judge in the General Division of the court) should have been dismissed.[185] Generally, the approach in sentence appeals from the Magistrates Court, even before those decisions, has been consistent with one or other of the formulations in Abeyakoon and Powell v Tickner.[186]
[183] Abeyakoon v Brown [2011] WASCA 63 (Abeyakoon) [32] (the Court).
[184] Powell v Tickner [9].
[185] Powell v Tickner [116].
[186] See, for instance, Wallam v Dent [2008] WASC 170 [30] - [31] (Jenkins J); Powell v The State of Western Australia [2010] WASC 54 [91] (Simmonds J); Joyce v Gee [2010] WASC 76 [34] (Mazza J, as he then was); Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502 [60] (Pritchard J, as her Honour then was); Crocker v Vinnicombe [2019] WASC 416 (Crocker v Vinnicombe) [59]. However, in Wallam v Dent, Jenkins J, applying the statements of the High Court in Weiss at [45], considered, at [33], that: 'There will be cases where it is appropriate to allow an appeal against sentence even though the sentence imposed by the magistrate was not excessive or greater than the appeal court would have imposed if sentencing the appellant at first instance. Those cases will be uncommon and as in the case of appeals against conviction it is not possible to articulate the criterion to identify the cases which will fall into this category.'
It remains necessary to consider what s 14(2) means, when it refers to a substantial miscarriage of justice, in the context of an appeal against a decision refusing to join a person as a party to protection proceedings under the Act, and against an extension order made in those proceedings following the refusal. As I have already indicated, the approach to the common form proviso, when applied in appeals against conviction, is inapplicable, in significant respects, to an appeal under pt 5 of the CCWA Act. The language used in the context of appeals against sentence is also not entirely apt when considering s 14(2) in the context of an appeal under pt 5 of the CCWA Act. However, I consider that the following general propositions derived from Wilde, Weiss and AK are apt in the application of the proviso in any case, including in respect of s 14(2):
(1)The court must make its own objective assessment of whether a substantial miscarriage of justice has occurred.
(2)The task is not an exercise in speculation or prediction of what the outcome would have been if the errors were not made, or what it would be if the matter were to proceed according to law (that is, without the errors made at first instance).
(3)Given the very wide variety of circumstances in which the proviso may come to be considered, there are no absolute rules, tests or criteria to identify when it is not appropriate to apply the proviso.
(4)However, where the proceedings at first instance have been tainted by a fundamental error or an error that involves such a departure from the essential requirements of a fair trial, or a proper exercise of jurisdiction (in the context of the present case), such an error will exclude the operation of the proviso, irrespective of the strength of the evidence that might support the outcome at first instance.
(5)In determining whether the proviso can or should be applied, it is necessary to have regard to the grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the court to allow the appeal.

I do not consider that those propositions are inconsistent with the views expressed by Mitchell J in WS v Gardin. In respect of the fourth proposition, while mindful of the admonition in the authorities against restating the generality of the principles by the use of particular labels, I consider that references to a 'serious breach of the presuppositions of the trial', or error going to 'the root of the proceedings', provide further guidance to the circumstances that would exclude the operation of the proviso.
Otherwise, I am of the view that the approach to be taken to the application of the s 14(2) proviso in appeals under pt 5 of the CCWA Act will depend on the circumstances of the case and the issue to which the appellable error or errors related. So, if the case is one in which the proviso is not excluded because of a fundamental or radical error, as discussed above, it may be that the test of consequentiality or materiality referred to by Mitchell J in WS v Gardin will be appropriate. In fact, materiality might affect the antecedent question of whether the error is such that the appeal should be allowed, even before considering the proviso.[187]
[187] Crocker v Vinnicombe [41] - [60].
Further, if the proviso is not excluded by fundamental or radical error, I am also of the view that, with modification for context, the approach that has been taken to the application of s 14(2) in sentencing appeals is apt as an approach for determining whether there has been no substantial miscarriage of justice. In other words, if the appellate court is of the view that the decision at first instance was correct (or appropriate), having regard to the evidence before the court below, or, put another way, that, despite the magistrate's errors, the court below should not have arrived at a different decision, then the court can dismiss the appeal on the basis that no substantial miscarriage of justice has occurred.
Having regard to the above, it is difficult to see how the s 14(2) proviso could be applied in relation to the decision to refuse the appellant's application to be joined as a party, at least in the circumstances of this case. That is because I have concluded that the only reasonable conclusion on the evidence before the magistrate was that the appellant satisfied the criteria in s 147(e) of the Act and, therefore, was deemed to be a party to the proceedings. The refusal to join the appellant affected her rights in a substantial way. It could not be said that no substantial miscarriage of justice has occurred in that context. The appeal against that decision must be allowed.
However, the appeal is also against the magistrate's decision in the substantive application in the protection proceedings, and the making of the extension order. The question remains whether, despite the fact that Grounds 1 to 4 of the appeal have been decided in favour of the appellant, which would ordinarily result in the appeal being allowed under s 14(1)(b) of the Criminal Appeals Act, no substantial miscarriage of justice has occurred as a result of the magistrate proceeding to hear the substantive application in the protection proceedings, and deciding to make the extension order. In that context, it may be relevant to consider whether the errors made by the magistrate in the joinder application, with the resulting decision not to join the appellant as a party, were consequential or material to the decision to make the extension order. It may also be relevant to consider whether the order was appropriate.
In my opinion, on the evidence before his Honour, as outlined above, the order made was not only open, but appropriate. Even if the appellant's affidavits had been received as evidence in respect of the substantive application in the protection proceedings, the overall picture was that J's parents were engaging in the reunification process in a manner that would justify perseverance with the process, with a view to J eventually returning to the care of one or both of the parents. It was also apparent that the issues with which J's parents were dealing were long-standing and could take some time to resolve in a way that would enable them to provide adequate care to J and ensure his well-being. In those circumstances, it might well be concluded that the extension of the protection order (time-limited) for a period of two years was not unreasonable. It is difficult to envisage what further evidence the appellant might have adduced, or submissions she might have made, which could have affected those conclusions, particularly in circumstances in which, from the outset, the plan had been to place J in temporary foster care to enable eventual reunification with his parents. That is particularly so in circumstances where the appellant had chosen, at that stage, not to make an application for a protection order (special guardianship) under s 69A(2) of the Act.
However, there are several reasons why those conclusions do not justify the application of the s 14(2) proviso in this case. First, there remains an element of speculation about the outcome, had the appellant been joined as a party. The court in Weiss cautioned against such speculation.[188] Secondly, it cannot be said with certainty that the exclusion of the appellant from the appeal would (or should) have had no significance in the determination of the extension application. Notwithstanding the difficulty I have indicated in envisaging evidence or submissions the appellant might have proffered, one cannot exclude the possibility that the perspective the appellant could bring as J's foster carer would have had a bearing on a matter such as the duration of the extension order. Thirdly, the only reasonable conclusion, having regard to the magistrate's reasons in the joinder application, is that, in determining the extension application, his Honour proceeded on the assumption that the appellant had no relationship to the child other than as a paid agent of the Department. Such an assumption could have affected the determination of the extension application. In that respect, it could not be said that the magistrate's errors were inconsequential or immaterial to the determination of the extension application. Finally, I am satisfied that proceeding to determine the extension application, having erroneously excluded the appellant as a party, involved such a departure from the essential requirements of the magistrate's proper exercise of jurisdiction under the Act and the CCWA Act, that the operation of the s 14(2) proviso is excluded, irrespective of the strength of the evidence in support of the extension application.
[188] Weiss [43].
That last conclusion corresponds with the second respondent's concession that the magistrate will have acted without jurisdiction in making the extension order, if I were to conclude that his Honour erred in refusing the joinder application, and that the appellant should be joined as a party. As I stated above, I consider that the concession was properly made. The proper exercise of jurisdiction required the magistrate to act in a just manner, allowing all persons who were parties to the protection proceedings to produce evidence and make submissions in relation to the extension application. That did not occur. In those circumstances, and having regard also to the other reasons outlined in the preceding paragraph above, it cannot be said that no substantial miscarriage of justice has occurred. There is no scope for applying the proviso, and the appeal must be allowed.
It would follow that this Court must set aside the magistrate's decisions, make an order that the appellant be joined as a party in the protection proceedings, and remit the matter to the Children's Court to be dealt with according to law in relation to the protection proceedings.

Grounds 5 to 7 - The procedural fairness grounds

Given my conclusions in respect of Grounds 1 to 4, it is not necessary to determine whether leave should be granted in respect of Grounds 5 to 7, which contend that the appellant was denied procedural fairness. However, I think it appropriate to make the following comments, having regard to the manner in which the hearing unfolded in the Children's Court. I have been assisted by the first respondent's written submissions, which identified the relevant principles in a succinct and convenient manner.
In conducting protection proceedings, the Children's Court is obliged to afford procedural fairness to the parties.[189]
[189] AC v The Chief Executive Officer of The Department for Child Protectionand Family Services [2015] WASC 477 [27] (Beech J).
The duty to accord natural justice, or the obligation of procedural fairness, is a universally accepted and important administrative law principle.[190] It is considered an essential element of good administration.
[190] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 613 (Brennan J).
The rules of natural justice encompass an obligation on a decision‑maker to give a person whose rights or interests may be affected by a decision the opportunity to be heard.[191]
[191] SL v CEO Department of Child Protection and Family Support [No 2] [2016] WASC 97 [32] (Pritchard J), and the cases cited therein.
Where a breach of the rules of natural justice has been shown, relief will nevertheless be denied if it is established that a properly conducted hearing could not possibly have produced a different result.[192]
[192] SL v CEO of the Department for Child Protection and Family Support [2017] WASC 293 [29] (Archer J), and the cases cited therein.
I note that the first two procedural fairness grounds (Grounds 5 and 6) relate only to the joinder application. If the appeal was allowed on those grounds against the refusal to join the appellant as a party to the protection proceedings, it might entitle the appellant to have the joinder application reinstated to be determined according to law, but would not necessarily affect the decision on the extension application. As I have determined that the appellant should be joined as a party, there is no occasion for reinstating the application.
It is not clear whether Ground 7, which contends that the magistrate's failure to permit the appellant to make submissions in the protection proceedings concerning J's best interests was a miscarriage of justice, was intended to allege a miscarriage in respect of the making of the extension order. Construed in that way, the ground is problematic. As the appellant was not joined as a party, and was not deemed to be a party by s 147(e) at that stage, because the magistrate had not considered her to meet the criteria of that provision, she had no right to be heard.
In any event, to provide context for comments that follow, it is sufficient to summarise the parties' submissions as follows. The appellant submitted that the learned magistrate denied the appellant's counsel the opportunity to make full submissions in support of the joinder application, and she was thereby denied procedural fairness. The appellant pointed in particular to the magistrate's acknowledgment towards the end of his exchange with the appellant's counsel that he was not allowing her to make submissions. The second respondent submitted that the magistrate did not refuse to permit the solicitor for the appellant to make submissions in support of the joinder application.[193] Counsel for the second respondent referred to passages in the transcript, to which I have referred above, that demonstrate the appellant's counsel was able to put her arguments, both by reference to the appellant's affidavit and the authorities.
[193] Second respondent's outline of submissions filed 20 October 2022, 5 [24].
It is apparent from the transcript of proceedings that the hearing of the appellant's joinder application was attended with a degree of tension. With respect, it did not assist that counsel for the CEO at first instance intervened on two occasions while the appellant's counsel was still making submissions. In my opinion, those interventions were not appropriate, in the circumstances. The fact that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit, does not obviate the need to observe the usual courtesy of allowing counsel to complete submissions before responding.
It is also apparent that the magistrate had a predetermined view about the appellant's status and made it clear that it was highly unlikely he would be persuaded to a different view. There is no error in the court having a preliminary opinion, but the appellant's counsel was entitled to be heard, nevertheless, in relation to the law and the facts, so that the appellant's case could be put on record. In relation to the law, counsel had correctly identified that his Honour's approach may be inconsistent with the authorities, in particular PR and DL. There was a degree of repetition in counsel's submissions in respect of the law. His Honour indicated he was familiar with the legislation and the authorities. Generally, the repetition of principles and references to authorities by counsel does not assist a judicial officer who is familiar with the principles and authorities. However, such familiarity does not exclude the possibility that submissions might be developed, based on the authorities, that could assist the court. Although it is speculative as to what further submissions counsel for the appellant at first instance wished to make, there was scope for development of further submissions arising from PR and DL, as set out above.
In any event, the appellant was not deprived of the opportunity to make submissions. The complaint is that she was not given the opportunity to put her full argument. As I have said, the appellant pointed to the exchange in which counsel queried with the magistrate whether he was denying her the opportunity to make submissions in support of the application and refer to relevant authority, and his Honour responded that he was (denying her that opportunity), explaining that the application was in a position to be resolved that very moment.[194] I do not consider that exchange to be determinative of the issue of whether the appellant was denied procedural fairness. It is necessary to have regard to the whole of what had transpired. Had it been necessary to determine these grounds, it would also have been necessary to have regard to the provisions of s 145 of the Act which, as I outlined above, require that protection proceedings be concluded as expeditiously as possible, in order to minimise the effect of the proceedings on the child and the child's family. That was obviously a consideration exercising the magistrate's mind. It does not mean that his Honour was correct to prevent further submissions, but it highlights the nuances involved in considering the question of procedural fairness in a case of this kind.
[194] AB 77.
As the appeal will be allowed on the basis of Grounds 1 to 4, it is not necessary to consider Grounds 5 to 7 further.

Matter to be heard by a differently constituted court

Given the circumstances of this case, it is appropriate that, when the matter is remitted to the Children's Court, it is heard by a different magistrate.

Costs

The parties agreed that there was to be no order as to costs, irrespective of the outcome of the appeal.

Orders

For the reasons stated above, I make the following orders:
(1)Leave to appeal is granted on Grounds 1, 2, 3 and 4 in the Appeal Notice.
(2)The Appeal is allowed on those grounds.
(3)The decision of the Children's Court refusing the appellant's application to be joined as a party to the protection proceedings in the Children's Court, being [REDACTED], be set aside.
(4)The decision and order of the Children's Court that the protection order (time-limited) in respect of the child in [REDACTED] be extended for a period of two years be set aside.
(5)The appellant be joined as a party to the protection proceedings in the Children's Court, being [REDACTED].
(6)The matter be remitted to the Children's Court of Western Australia for hearing and determination of the application to extend the protection order (time-limited) according to law, by a magistrate other than the magistrate who heard the matter on 16 May 2022.
(7)There is to be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
27 MARCH 2023