"RT" v Kerri Dawn CRO an Officer of the Department for Community Development
[2006] WASC 240
"RT" & ANOR -v- KERRI DAWN CRO an Officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT [2006] WASC 240
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 240 | |
| Case No: | SJA:1090/2006 | 19 OCTOBER 2006 | |
| Coram: | BLAXELL J | 26/10/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave given to appeal from orders committing children to care of Department until 18 years of age | ||
| B | |||
| PDF Version |
| Parties: | "RT" "AT" KERRI DAWN CRO an Officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT |
Catchwords: | Appeal Application for leave to appeal Declaration that appellants' children in need of care and protection Children committed to the care of the Department until 18 years of age |
Legislation: | Child Welfare Act 1947 (WA), s 29, s 30 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- "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 : KERRI DAWN CRO an Officer of the DEPARTMENT FOR COMMUNITY DEVELOPMENT v "AT" & ANOR [2006] WACC 5
File No : CC 5190 of 2005, CC 5191 of 2005, CC 5192 of 2005
(Page 2)
Catchwords:
Appeal - Application for leave to appeal - Declaration that appellants' children in need of care and protection - Children committed to the care of the Department until 18 years of age
Legislation:
Child Welfare Act 1947 (WA), s 29, s 30
Result:
Leave given to appeal from orders committing children to care of Department until 18 years of age
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : No appearance
Solicitors:
Appellants : In person
Respondent : Legal Section, Department for Community Development
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 BLAXELL J: This is an application for leave to appeal from the decision of Magistrate Schwass in the Children's Court declaring each of the appellants' three children to be in need of care and protection. His Honour also ordered that each child be committed to the care of the Department for Community Development until the age of 18 years.
2 The appellants are married and are the natural parents of the three children who are aged 10 years, 9 years and 5 years. At times in the past the appellants have been separated and engaged in Family Court proceedings, but they are presently reconciled and living together.
The proceedings in the Children's Court
3 On 6 October 2005 the respondent (pursuant to s 29 of the Child Welfare Act, and acting on information from the Family Court) apprehended the children as being children in need of care and protection. By applications dated 12 October 2005 the respondent then sought declarations to that effect as well as orders that each child be committed to the care of the Department for a period of two years.
4 Various arrangements were then put in place for the interim care of the children but from about March 2006 the appellants were not permitted to have any contact with them. 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 the hearing and the application was refused.
5 The respondent's substantive applications ultimately came on for hearing on 28 - 31 August 2006, and the appellants were again unrepresented (having been refused Legal Aid). At the commencement of the hearing the respondent was granted leave to amend the applications so as to apply for orders that each child be committed to the care of the Department until 18 years of age (instead of committal for a period of two years as applied for previously).
6 At the conclusion of the hearing the Magistrate declared that each child was in need of care and protection. In coming to this decision his Honour made findings that:
"[39] ... 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
(Page 4)
- 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."
7 Without going into the details of the evidence that was before his Honour, it is clear that the declaration that each child was in need of care and protection was well and truly justified. His Honour also made orders that each child be committed to the care of the Department until 18 years of age, and expressed the following reasons for such orders:
"I am satisfied that wardship until 18 years of age is in their best interests. There is no evidence that [the appellants] have changed and no persuasive evidence to suggest they will."
Whether there should be leave to appeal
8 On 8 September 2006 the appellants lodged an appeal notice in this Court which had been prepared without the benefit of legal advice. As the notice did not articulate any clear grounds of appeal, their application for leave to appeal was listed before myself. Although offered the opportunity, the respondent chose not to appear.
9 After explaining to the appellants the nature of the appeal process I asked them to outline the reasons why they were seeking leave to appeal. Most of their complaints concerned the conduct of the respondent and were not directed to the question of whether there were any errors made in the Court below. To the extent that the appellants did have grievances about the hearing in the Children's Court, these were largely to do with perceived unfairness resulting from their lack of legal representation.
10 Having done my best to sift through the appellants' various complaints, it seems to me that there are two possible grounds of appeal. The first relates to the late amendment of the applications and the circumstances under which those amendments were made.
11 In this regard, the appellants' essential grievance is that they came to the hearing faced with the prospect of losing their children for two years, but then the goalposts were suddenly changed with the consequence that they are now indefinitely denied any contact with their children and possibly until each turns 18 years of age.
12 There is a further aspect to the circumstances of the amendment, which although not articulated by the appellants, to me seems self-evident. That is that they were refused legal aid for representation at
(Page 5)
- the hearing at a time when the respondent was seeking orders for committal of each child for a period of two years. There is no way of knowing whether legal aid might have been granted if the respondent had then been seeking committal of each child until 18 years of age. In these circumstances it could be argued that the learned Magistrate should have refused the application to amend. Alternatively his Honour could have made it a condition of the grant of leave to amend that the hearing be adjourned to enable the appellants to re-apply for Legal Aid.
13 The second potential ground of appeal concerns the finding itself that each child should be committed to the care of the Department until 18 years of age. His Honour's reasons for this finding were very brief and did not address the question whether wardship for a lesser period might be appropriate in all of the circumstances. Given the very dire outcome of the hearing from the appellants' point of view, it might reasonably be argued that this was an issue which required more careful consideration.
14 For the above reasons the appellants will be given leave 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.
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