"RT" v Kerri Dawn Cro an officer of the Department for Community Development

[2007] WASC 40

"RT" & ANOR -v- KERRI DAWN CRO an officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASC 40

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 40
Case No:	SJA:1090/2006	Heard:	1 FEBRUARY 2007
Coram:	BLAXELL J	Delivered:	20/02/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Application for leave to add additional ground of appeal refused
Category:	B
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Parties:	"RT" "AT" KERRI DAWN CRO an officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT First & second children
Catchwords:	Appeal Application for leave to add additional ground of appeal Decision declaring appellants' children to be in need of care and protection, and committing them to the care of the Department until 18 years of age Appellants unable to obtain legal representation for hearing Whether "Dietrich principle" applies
Legislation:	Child Welfare Act 1947 (WA), s 29 and s 30
Case References:	"RT" & Anor v Cro an Officer of the Department for Community Development [2006] WASC 240 Dietrich v The Queen (1992) 177 CLR 292

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : "RT" & ANOR -v- KERRI DAWN CRO an officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASC 40 CORAM : BLAXELL J HEARD : 1 FEBRUARY 2007 DELIVERED : 21 FEBRUARY 2007 FILE NO/S : SJA 1090 of 2006 BETWEEN : "RT"

"AT"
Appellants

AND

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

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Catchwords:

Appeal - Application for leave to add additional ground of appeal - Decision declaring appellants' children to be in need of care and protection, and committing them to the care of the Department until 18 years of age - Appellants unable to obtain legal representation for hearing - Whether "Dietrich principle" applies

Legislation:

Child Welfare Act 1947 (WA), s 29 and s 30

Result:

Application for leave to add additional ground of appeal refused

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

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

"RT" & Anor v Cro an Officer of the Department for Community Development [2006] WASC 240
Dietrich v The Queen (1992) 177 CLR 292


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1 BLAXELL J: In this matter I have previously granted the appellants leave to appeal from a decision made in the Children's Court on 31 August 2006 declaring their 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. (See [2006] WASC 240.) The appellants were unrepresented in the Children's Court, and on 26 October 2006 leave was granted for them to appeal on the following two grounds:

"1. That the learned Magistrate erred in law in granting amendments to each application in circumstances that were unfair to the appellants.

2. 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."

2 The respondent did not appear on the application for leave, but subsequently lodged an affidavit detailing the full sequence of proceedings and other circumstances surrounding the decision in the Children's Court. As a result, I became aware for the first time that the hearing on 28 - 31 August had followed an adjournment from previously listed trial dates in May 2006. Furthermore, the Magistrate had adjourned the hearing in May 2006 specifically to enable the appellants to seek legal aid in respect of the proceedings.

3 Following the grant of leave to appeal the appellants have been legally represented. At a Directions Hearing on 18 January 2007 I heard counsels' submissions as to the newly disclosed facts, and decided that the leave granted in respect of the first ground of appeal should be withdrawn. At the appellants' request I then adjourned the Directions Hearing until 1 February 2007 when they applied for leave to add the following additional ground of appeal:

"The learned Magistrate erred in law in failing to adjourn or stay the further hearing of the Application until the Appellants had obtained legal representation."

4 This proposed ground of appeal squarely raises the question whether the "Dietrich principle" which applies to serious criminal trials, should also apply to defended care and protection applications in the Children's Court. The principle is to be found in Dietrich v The Queen (1992) 177 CLR 292, where a majority of the High Court essentially held that there is power to stay criminal proceedings which will result in an unfair trial.
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Accordingly when an indigent accused facing a serious charge is through no fault unrepresented then (in the absence of exceptional circumstances) the trial should be adjourned or stayed until legal representation is obtained.

5 Consistently with this principle, the appellants claim that in the particular circumstances of the present case, the fact that they were unrepresented meant that they did not receive a fair trial of their defence to the application for committal of their children to the care of the Department. In this regard, their underlying contention is that the permanent loss of their children was a matter of such great importance that they could not receive a fair trial unless they were legally represented.

6 I reserved the question of whether or not the appellant should have leave to add this additional ground of appeal, and now provide these reasons for decision. It should be noted that at this stage of the appeal process I am not deciding on the final merits of the proposed ground, but merely determining whether or not it has reasonable prospects of success.

The full sequence of relevant events

7 The appellants are married and are the natural parents of their three children aged 11 years, 9 years, and 5 years. During 2005 the appellants were separated and involved in Family Court proceedings concerning the custody of their children.

8 On 7 October 2005 the Department for Community Development (acting on information received from the Family Court) apprehended the children pursuant to s 29 of the Child Welfare Act 1947 ("the Act"). Care and protection applications in respect of all children were then filed in the Children's Court pursuant to s 30 of the Act.

9 The Department initially applied for a care and protection order in relation to each child "for two years or such other period as this Honourable Court considers appropriate". At that time the appellants were separately represented by the solicitors who had been appearing for them in the Family Court proceedings. The female appellant continued to be so represented until 25 January, and the male appellant until 20 February 2006. They then ceased to be represented as a result of their grants of legal aid being withdrawn.

10 When the children were apprehended on 7 October 2005 they continued to live with their mother. However from 9 December 2005 the children were removed from the care of the female appellant and

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temporarily placed elsewhere. During January 2006 the appellants reconciled and commenced to live together once again. In March 2006 the Department terminated all contact between the children and the appellants, because this was considered to be in the formers' best interests.

11 The care and protection applications were first listed for trial on 9 May 2006. Shortly prior to then, the respondent informed the appellants that the Department would be seeking a care and protection order in respect of each child until 18 years of age. As a result, the appellants sought advice from a lawyer at the Legal Aid Commission and requested that she seek an adjournment of the trial.

12 Consequently, duty counsel represented both appellants in the Children's Court on 9 May 2006 and applied for an adjournment of the trial. The duty counsel also informed the court that she hoped to persuade the Legal Aid Commission to make a further grant of legal aid so that the appellants would be represented at an adjourned hearing.

13 The Magistrate readily granted the adjournment because his Honour was persuaded:

" ... that it is proper in all the circumstances and in the interests of the children that an adjournment be granted to hopefully enable at least the respondent mother to be legally represented so that the evidence can be properly tested. ...

It is more important they be heard properly rather than quickly. The children are presumably in an adequate placement which can continue and my view is that can continue until this matter is resolved."

His Honour also told the appellants that:

"I don't have any difficulty with the proposition that you should be represented and in fact I think its outrageous that you are not. Irrespective of what the allegations or the facts might prove to be you should be represented. I don't have any need to be persuaded of that, so I have asked [duty counsel] as an officer of the court, to further your application and review, or whatever stage it is at, before the Legal Aid Commission, and that is all that I can do." (T 11 and 12.)

14 Well prior to the adjournment on 9 May 2006, the appellants had lodged separate applications for legal aid for representation in the care and protection proceedings. Those applications had been refused and had then
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been the subject of reconsideration and review. In each instance aid was refused because the appellant was "unlikely to succeed". The efforts of duty counsel subsequent to 9 May 2006 obviously did not result in any change in this situation.

15 On 22 and 23 June 2006 the Children's Court heard an application by the appellants for access to the children once a week at a supervised access venue. The appellants were not represented at this hearing and the application was refused. It is relevant to note that amongst the exhibits tendered at that hearing was a report by a clinical and forensic psychologist assessing the male appellant as being subject to "significant cognitive deficits" and of "limited intellectual function".

16 Ultimately, the trial of the substantive applications came on for hearing between 28 and 31 August 2006 and the appellants were yet again unrepresented. Each child was declared to be in need of care and protection and was committed to the care of the Department until 18 years of age.

Whether the "Dietrich principle" can apply to care and protection proceedings

17 The courts in almost every jurisdiction are experiencing increasing numbers of self-represented litigants who cannot afford to pay for legal representation and are unable to obtain grants of legal aid. Although the courts do their best to accommodate such litigants, the need for judicial neutrality means that the assistance provided is very limited, and cannot include advice such as what witnesses or evidence should be called, or what arguments should be advanced. Consequently, self-represented litigants are almost always in a position of significant disadvantage, and this is particularly so when a well resourced opposing party is legally represented.

18 It is fundamental to the system of justice that all litigants including those that are self-represented should receive a fair hearing. When very serious issues are at stake, it is questionable whether it will be possible to provide a fair hearing to some unrepresented litigants. The validity of this proposition in the context of serious criminal trials was recognised by the High Court in its decision in Dietrich. As Mason CJ and McHugh J stated (at 311):

" ... Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the

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particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial."

19 Similarly, at 336, Deane J stated:

"It appears to me to be manifest that, in the absence of exceptional circumstances, the inability of an indigent accused to obtain legal representation from any source will have the consequence that such a trial is unfair."

(See also Toohey J at 361, and Gaudron J at 371 and 374.)

20 In the present case, the appellants contend that the issues at stake in the Children's Court proceedings were so serious that they could only receive a fair hearing if they were legally represented. In my opinion, there is some substance to this contention because the appellants undoubtedly lacked full capacity to adequately represent themselves, and the potential outcome of the hearing was of the utmost gravity. In this regard, the question whether parents should be permanently separated from their young children is probably about as serious a matter as a court can ever be called upon to determine, because it has a great impact on the lives of those directly involved as well as the potential for long-term consequences to society in general.

21 However, it must be remembered that the appellants were not the only parties who had a vital interest in the outcome of the proceedings. The fate of each of the children was also at stake, and it was alleged that those children had been in an abusive situation while in the appellants' care. Consequently, the court had to weigh the unfairness to the appellants of proceeding with the hearing while they were unrepresented, against the need to determine what was in the best interests of the children.

22 In care and protection proceedings the welfare of the child the subject of the application must necessarily be the paramount consideration. It is obviously not in the best interests of the child that its future placement and living arrangements should remain undetermined for an indefinite period. This is particularly so when, as in the present case, the child is subject to temporary placement pending the outcome of the application.

23 These considerations lead inevitably to the conclusion that there is simply no scope for the "Dietrich principle" to have full force in care and protection proceedings. Accordingly, and in the event that the parents

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opposing such an application are unrepresented, it is not open to the court to stay the proceedings indefinitely. If the court was to take this step it would not only be neglecting the best interests of the child, but also failing to exercise the jurisdiction that has been vested in it by the Act.

24 Nevertheless, and to the extent that the best interests of the child will not be prejudiced, the court should always facilitate whatever reasonable opportunities the unrepresented parents might have of obtaining legal representation. In many instances this will necessitate that the proceedings be adjourned for a limited period or for successive limited periods until all avenues of legal aid have been explored.

25 I now turn to the question whether the Magistrate in the present case did all that could be done in that regard.

Whether there was anything further that the Magistrate could have done

26 When the proceedings first came on for trial in May 2006, duty counsel appeared for the appellants and applied for an adjournment. The court was told by duty counsel that she would do all that she could to persuade the Legal Aid Commission to grant legal aid for representation at an adjourned hearing. In these circumstances, the Magistrate readily granted the adjournment.

27 It is significant that the duty counsel who appeared for the appellants in May 2006 was employed by the Legal Aid Commission. Accordingly, when the Magistrate made some fairly forceful remarks as to the reasons why the appellants should be represented his Honour was effectively communicating directly with the Commission. There was really little else that his Honour could do by way of facilitating the appellants' legal representation. As was stated by Brennan J in Dietrich (at 323):

"The courts do not control the public purse strings; nor can they conscript the legal profession to compel the rendering of professional services without reward. The provision of adequate legal representation for persons charged with the commission of serious offences is a function which only the legislature and the executive can perform. No doubt, demands on the public purse other than legal aid limit the funds available. If the limitation is severe, the administration of justice suffers. The courts can point out that the administration of justice is an inalienable function of the State and that the very security of the State depends on the fair and efficient administration of justice,

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but the courts cannot compel the legislature and the executive government to provide legal representation."

28 Following the adjournment in May 2006, the duty counsel was unsuccessful in her attempts to persuade her employer to grant legal aid to the appellants. By the time that the applications came on for trial once again in August 2006 all avenues of possible legal representation for the appellants (including reconsiderations and reviews) had been exhausted.

29 It follows that there would not have been any point in a further adjournment of the proceedings, and that the Magistrate really had no option other than to hear and determine the applications. In this regard, the best interests of the children were paramount, and it was necessary that the issues as to their future care should be resolved without any further delay.

Conclusion

30 In my view, the appellants' proposed additional ground of appeal has no reasonable prospects of success. It follows that the application for leave in respect of this proposed ground should be refused, and that the appeal should proceed to hearing on the single ground 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."