SL v Chief Executive Officer of the Department for Child Protection and Family Support

[2018] WASCA 39

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2018] WASCA 39

CORAM:   BUSS P

MAZZA JA
BEECH JA

HEARD:   19 MARCH 2018

DELIVERED          :   19 MARCH 2018

FILE NO/S:   CACR 228 of 2017

BETWEEN:   SL

Appellant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent

LHL
Second Respondent

JCL
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ARCHER J

Citation  :SL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASC 293

File No  :SJA 1084 of 2016

Catchwords:

Appeal against the decision of a single judge dismissing an application for leave to appeal against the making of a child protection order - Application in the appeal for an interlocutory mandatory injunction - Turns on own facts

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)

Result:

Appellant's application in the appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     No apperance

Second Respondent      :     No appearance

Third Respondent          :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

Third Respondent          :     State Solicitor for Western Australia

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

Nil

1. JUDGMENT OF THE COURT:    On 7 November 2017, the appellant filed an appeal notice in this court.

2. In the appeal notice, the appellant applied for leave to appeal against a decision of Archer J, namely her Honour's dismissal of the appellant's application for leave to appeal against a protection order made by Magistrate Schwass on 25 August 2016 under s 45 of the Children and Community Services Act 2004 (WA) (the CCS Act).

3. By s 42 of the Children's Court of Western Australia Act 1988 (WA) (the CCWA Act), an appeal may be brought against a protection order made under s 45 of the CCS Act. The appeal is treated as an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). Leave to appeal is required.

4. An overview of the facts relating to the proceedings before Magistrate Schwass, as set out in Archer J's reasons,  is as follows.

5. In 2008 a girl, JL, was born in China.  The second respondent, LL, is JL's mother.  LL is living overseas.  The appellant is JL's father.  He is living in Australia.

6. LL and JL arrived in Western Australia and began living in this State when JL was aged about 9 ½ months.  LL had a tourist visa for 12 months.  When the tourist visa expired, LL returned to China.  JL remained in Western Australia.  Initially, JL was cared for by a family friend.  However, at some stage before 22 August 2011, JL began living with the appellant in his home. 

7. On 22 August 2011, two officers of the Department for Child Protection and Family Support (the Department) attended at the appellant's home.  They were investigating information to the effect that the appellant's home was unsuitable for a young child.

8. The next day, that is on 23 August 2011, the appellant took JL to the Perth office of the Department and left her there. She was then aged 3 years. JL was taken into provisional protection and care under s 37 of the CCS Act.

9. On 25 August 2011, the Chief Executive Officer (the CEO) of the Department made an application for a protection order in relation to JL under s 44 of the CCS Act. Subsequently, there were numerous interim hearings in the Children's Court and communications between the parties to the proceedings in relation to contact and carer arrangements concerning JL.

10. On 5 November 2013, Magistrate Crawford made a violence restraining order for a term of 5 years which prevented the appellant from having any contact with JL.

11. On 29 May 2014, Magistrate Crawford made a temporary protection order for a term of 6 months.

12. Before the expiration of the temporary protection order, the CEO applied for an extension of the protection order for a term of 2 years.  Later, the CEO amended the application and sought a protection order until JL attained the age of 18 years.

13. In August 2016, the substantive hearing of the CEO's amended application occurred before Magistrate Schwass.  On 25 August 2016, the amended application was granted.

14. Accordingly, since August 2011, JL has been under the care of the Department. 

15. On 18 October 2017, Archer J granted the appellant's application for an extension of time to appeal.  However, her Honour refused leave to appeal on all grounds and dismissed the appeal.

16. Today, we are dealing with the appellant's application in the appeal dated 23 February 2018.  The application is supported by the appellant's affidavit sworn 23 February 2018.  In the application the appellant applies ex parte for, in effect, a mandatory injunction against the CEO, the Department, and officers and legal representatives of the Department.  The order sought requires those persons 'to retain, protect and prevent loss of all evidence that they have in respect to these proceedings, including but not limited to matters that in any way relate to their systems, audit, compliance, policies and procedures, record keeping, human resources, exit interviews, complaints, care plans, legal practices, file notes, and all proceedings that relate to [JL], in particular, the initial physical and psychological examination sought by [the appellant]'. 

17. The appellant made numerous serious allegations in his oral submissions today that are not supported by any admissible evidence.

18. In our opinion, the appellant's application in the appeal should be dismissed.  There is no basis in the admissible evidence before this court for a reasonable apprehension that any of the persons against whom the order is sought might, if not restrained by a mandatory injunction or other order, destroy, fail to retain, or fail to protect or prevent the loss of any documents, electronic data or other evidence in their possession, custody or control relating to any matter in issue in this appeal or in the appeal before Archer J or in any of the proceedings concerning JL which have been litigated in the Children's Court.

19. The court orders that the appellant's application in the appeal dated 23 February 2018 is dismissed.