RT v CRO [No 3]
[2007] WASC 223
•20 SEPTEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RT -v- CRO [No 3] [2007] WASC 223
CORAM: BLAXELL J
HEARD: 30 MAY 2007
DELIVERED : 20 SEPTEMBER 2007
FILE NO/S: SJA 1090 of 2006
BETWEEN: RT
AT
AppellantsAND
KERRI DAWN CRO an officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T SCHWASS
Citation :[2006] WACC 5
File No :CC 5190 of 2005, CC 5191 of 2005, CC 5192 of 2005
Catchwords:
Appeal - Declaration that appellants' children in need of care and protection - Order committing them to the care of the Department until 18 years of age - Whether Magistrate should have considered committal of each child for a lesser period
Legislation:
Child Welfare Act 1947 (WA), s 29 and s 30
Result:
Appeal allowed and order made substituting two years as the period of committal for each child
Category: B
Representation:
Counsel:
First-named appellant : Mr R I M Bannerman
Second-named appellant : Mr S A Walker
Respondent: Mr D K Childs
First & second children : Ms L E Thomas
Solicitors:
First-named appellant : Richard Bannerman
Second-named appellant : Calverley Johnston
Respondent: Legal Section, Department for Community Development
First & second children : Paterson & Dowding
Case(s) referred to in judgment(s):
Crouch v Dean (No 2) (Unreported, WASC, Library No 930696, 16 December 1993)
Crouch v Dean (Unreported, WASC, Library No 930396, 21 July 1993)
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
BLAXELL J: This is an appeal from a decision made by a Magistrate in the Children's Court on 31 August 2006 declaring the appellants' three children to be in need of care and protection, and committing them to the care of the Department for Community Development until 18 years of age. I have previously made two decisions in respect of the appellants' applications for leave to appeal (in [2006] WASC 240 and [2007] WASC 40). Ultimately, the appeal came on for hearing and I reserved my decision in respect of the following sole ground of appeal:
That the Magistrate erred in law in failing to consider whether each child should be committed to the care of the Department for a lesser period than until 18 years of age.
The essential facts that are common ground
The male and female appellants (the father and mother) are respectively 40 and 46 years of age. They are the natural parents of their three children who are now aged 11 years, 10 years, and 6 years.
The appellants became married in 1995, and subsequently have had a very turbulent relationship. Commencing in October 1995 there have been frequent periods of separation because of the father's violent behaviour towards the mother and/or the children. During 1995 and 2000, the mother also applied for and obtained violence restraining orders against the father.
There were at least three occasions when the appellants were separated from each other for significant lengths of time, and when the children were living with the mother alone. At the end of each of these periods of separation, the mother voluntarily returned to live with the father following which the previous pattern of violence towards her and the children ultimately resumed.
During 2005, there were proceedings in the Family Court between the father and the mother which resulted in the children coming to the notice of the Department for Community Development. On 7 October 2005 the Department apprehended the children under s 29 of the Child Welfare Act 1947 (WA) (the old Act), and filed a care and protection application in respect of each child under s 30 of the old Act.
From 7 October until 9 December 2005 the children continued to live with the mother. However, the mother then reconciled with the father once again, and the Department removed the children from her care.
In January 2006 the father and the mother resumed full cohabitation, and they have remained together ever since. Since March 2006 the Department has prevented any physical contact between the children and the appellants on the basis that this is in the formers' best interests. However, the appellants have continued to communicate with their children by way of written correspondence.
The proceedings in the Children's Court
When the Department filed the care and protection applications in the Children's Court, the father and the mother were still separately represented as a result of grants of legal aid for the purposes of the Family Court proceedings. They each then sought an extension of legal aid to cover their representation in the Children's Court, but were unsuccessful with these applications. Consequently, the father and the mother were unrepresented throughout the proceedings in respect of the care and protection applications. However, the Legal Aid Commission granted legal aid to the children so that they could be independently represented before the Children's Court.
The applications as initially filed by the respondent in February 2006 applied for a care and protection order in respect of each child 'for two years or for such other period as this Honourable Court considers appropriate'. However, in May 2006 those applications were amended to seek a care and protection order in respect of each child until 18 years of age.
Those amended applications did not come on for hearing until 28 August 2006, and pending that hearing, the father and the mother sought interim access to the children. Their application for weekly access at a supervised access venue was heard on 22 and 23 June 2006 but was refused. Much of the evidence concerning the question of access was relevant to the issues in the care and protection applications, and consequently, the transcript of the June 2006 hearing was admitted (by consent) at the final hearing.
The final hearing of the care and protection applications took place over four days. The court was provided with extensive evidence as to numerous acts of violence committed by the father on the mother and the children. Much of this evidence came from a very detailed affidavit that the mother had sworn for the purposes of the Family Court proceedings. There was also evidence of offences of threatening with intent to influence, and criminal damage, allegedly committed by the father against a witness who had agreed to testify for the mother in the Family Court proceedings.
The court also had the benefit of evidence from a clinical psychologist as to assessments he had made of the father, the mother, and each of the children. In this regard, there was no indication that the father suffered any major mental illness, but there was clear evidence of 'a personality disorder secondary to cognitive problems'. The mother did not show any evidence of formal mental illness or personality disorder, but was assessed as being 'a fairly simple woman who has very little psychological insight, and seems to be a fairly dependant personality type'.
The evidence as to the psychological condition of each child was very significant. The eldest child was assessed as having intellectual disabilities with attention problems secondary to a low IQ. The other two children were of average intelligence but were showing a lack of intellectual stimulation. More importantly, the two eldest children manifested diagnostic features of post traumatic stress disorder resulting from the father's persistent threats and violence.
Another matter of great concern was evidence of inappropriate sexualised behaviour by all three children. This was consistent with the mother's claim in the Family Court proceedings that the father had frequently engaged in sexual intercourse and other sexual acts with her in the presence of the children.
The father and the mother did not seriously challenge the evidence called by the respondent, but this may well have been partly due to their lack of legal representation. They confirmed to the court that they were a couple once again and that they intended to remain together indefinitely.
In coming to the decision to grant each application, the Magistrate noted that the evidence of the father's violence and associated threats was overwhelming. His Honour accepted the assessments of the clinical psychologists, and also considered that the evidence of the psychological state of the children was 'decisive'. His Honour further observed (at [34] ‑ [37] of his decision) that:
From all the evidence it is clear the respondent mother has at times made efforts to protect the children. She has fled the State on two occasions. The last occasion was in effect thwarted by the respondent father taking action in the Family Court.
Whatever her motivation the respondent mother is now with the respondent father. It is accepted that as at the date of the hearing of this matter the respondents intend to remain together as a couple. This matter has proceeded on this basis.
The respondent mother's position is that people can change and people should be forgiven and she has forgiven the respondent father.
There is no evidence of any change in the respondent father. The evidence is to the contrary.
Having reviewed all of the evidence, the Magistrate then went on to make findings (at [38] ‑ [43]) as follows:
Findings
I reply upon all the evidence produced, not just the evidence previously mentioned, to make my findings.
I am well satisfied on the balance of probabilities having regard to the considerable consequences of being so satisfied that the children each come within at least the definitions of a child in need of care and protection as contained in s 4(1)(i) and s 4(1)(k) of the Act. The children when apprehended were being ill treated and living under such conditions and behaving in such a manner as to indicate that their mental, physical and moral welfare was likely to be in jeopardy. I am further satisfied on the same standard that the applications should be granted. The children would continue to be ill treated and have their welfare jeopardised if returned to the care of the respondents, particularly the care of the respondent father.
Declaration
I declare the children to be in need of care and protection.
Order
I order that each child be committed to the care of the Department until 18 years of age. I am satisfied that wardship until 18 years of age is in their best interests. There is no evidence that the respondents have changed and no persuasive evidence to suggest they will.
Recommendation
Any contact between the children and the respondents be in accordance with each child's wishes and in the child's best interests.
Comment
Where the children reside and what contact they have with others is now for the Department to decide.
The merits of the appeal
The proceedings in the present matter were heard and decided by the Magistrate under the old Act which has since been repealed and replaced by the Children and Community Services Act 2004 (WA) (the new Act). Section 30 of the old Act relevantly provided that:
(1)The court upon the hearing of an application to declare a child in need of care and protection may on being satisfied that the application should be granted, declare the child to be in need of care and protection and may order the child until he attains the age of 18 years, or during such shorter period as the court may think sufficient to be -
(a)committed to the care of the Department; or
(b)placed under the control of the Department.
Section 4 of the old Act defined a 'child in need of care and protection' in a variety of ways, but as including a child who:
(k)is living under such conditions, or is found in such circumstances, or behaves in such a manner, as to indicate that the mental, physical or moral welfare of the child is likely to be in jeopardy.
The present appeal does not challenge the decision by the Magistrate to grant the applications nor the declaration that each child was in need of care and protection. Nor is there any challenge to the orders that were made committing each child to the care of the Department. The only issue raised by the appeal concerns the period of each such committal and whether or not it should have been until the child attained the age of 18 years.
The Magistrate's reasons for decision did not expressly consider whether the committal of each child could have been for a lesser period than until 18 years of age. The only comments made by his Honour which had any direct bearing on this question were the following:
I am satisfied that wardship until 18 years of age is in their best interests. There is no evidence that the respondents have changed and no persuasive evidence to suggest they will [41].
Furthermore his Honour did not refer to or deal in any way with the submissions (ts 202 ‑ 203) from the childrens' counsel which were based on the evidence and were to the following effect:
(i)the mother had not been the perpetrator of either physical abuse or neglect, and previously had demonstrated protective behaviour over an extended period, including by removing the children interstate and over an extended period denying contact to the father;
(ii)evidence from the school principal showed that in the care of the mother the children had presented appropriately at school, in terms of their physical presentation, appropriate care, and appropriate support in their education;
(iii)the parents were about to embark on therapy, which might lead to the mother 'engaging and progressing and developing some insight as to the impact that the history has had on the children and develop measures in which to ensure that that not occur in the future' - the therapy may lead to the parents no longer residing together, as had been the case during extensive earlier periods;
(iv)the children had a very close, very caring and loving relationship with their mother;
(v)An experienced child psychologist had identified a strong attachment between the children and the mother;
(vi)despite an extensive period prior to the trial during which they had been having no contact, the children were still identifying a very strong desire to have contact with the mother; and
(vii)the children had lived their lives to that point primarily with their mother.
[NB: It should be noted that these submissions have not been renewed on behalf of the children by the same counsel who has appeared for them on the hearing of the appeal. It would seem that the children have had a change of heart, and that as a result they oppose the appeal.]
Quite obviously, the length of time that the children were to remain in the care of the Department was a matter of great significance not only to them, but also to each of the parents. In my view, this was an issue of such great significance, that it required adequate reasons which fully explained why the Magistrate came to the decision that he did. In this regard the Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [26] has reviewed the authorities and restated the relevant principles as follows:
… the giving of reasons is a normal (albeit not universal) incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 ‑ 270, 278; and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441. That is because 'the duty is a function of due process, and therefore of justice': Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381, per Henry and Laws LJJ and Hidden J. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment: Flannery (ibid); and see Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 at 31. The requirement also furthers judicial accountability: Soulemezis, at 279, per McHugh JA; and Beale, at 442, per Meagher JA.
Furthermore, the Magistrate did not address the possibility that the mother might at some time leave the father and be in a position to care for the children on her own. In this regard, it seems that his Honour simply proceeded on the basis that 'as at the date of the hearing … the respondents intend to remain together as a couple' [35].
In my view, the best interests of the children (as well as the overall justice of the case) required that the Magistrate should have allowed for the possibility that the mother might at some time in the future be in a position to permanently care for the children on her own. In this regard, I respectfully adopt the views of Rowland J in Crouch v Dean (Unreported, WASC, Library No 930396, 21 July 1993) and Scott J in Crouch v Dean (No 2)(Unreported, WASC, Library No 930696, 16 December 1993) to the effect that it should not be left to the mother in such circumstances to seek ministerial or other administrative relief (or to seek revocation of the protection orders under s 67 of the new Act). This is particularly so in circumstances were the mother has had difficulty in obtaining legal representation.
For all of these reasons, I consider that the Magistrate erred in failing to consider whether the children should be committed to the care of the Department for a lesser period than until 18 years of age. It follows that the appeal should be allowed.
The appropriate orders
In the particular circumstances of the present appeal I do not consider that it would be in the best interests of the children or of the parties for the matter to be remitted back to the Magistrate for re‑hearing. Having been appraised of all of the evidence and materials that were before the Magistrate, I believe that I am in just as good a position as he was to make the orders that are appropriate in all of the circumstances.
In my view, the best interests of the children will be served if they remain under the care of the Department for at least two years from the date of the Magistrate's order, and that their situation be then reviewed.
Accordingly, I have determined that in respect of each application the order made by the Magistrate committing each child to the care of the Department until 18 years of age should be substituted with an order that each child be committed for a period of two years.
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