SL v Chief Executive Officer of the Department for Child Protection and Family Support
[2017] WASC 293
•18 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASC 293
CORAM: ARCHER J
HEARD: 22 AUGUST 2017
DELIVERED : 18 OCTOBER 2017
FILE NO/S: SJA 1084 of 2016
BETWEEN: SL
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First RespondentLL
Second RespondentJL
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T G SCHWASS
File No :CC 4121 of 2011
Catchwords:
Application for leave to appeal - Appeal against decision of the Children's Court to make protection order (until 18 years) - Leave to appeal refused - Appeal dismissed
Legislation:
Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 23004 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Mr B D Nelson
Second Respondent : No appearance
Third Respondent : Ms M M Wadsworth
Solicitors:
Appellant: In person
First Respondent : State Solicitor for Western Australia
Second Respondent : No appearance
Third Respondent : Bannerman Solicitors
Case(s) referred to in judgment(s):
AC v The Chief Executive Officer of The Department for Child Protection [2015] WASC 477
CEO v LHL [2014] WACC 4
De Alwis v The State of Western Australia [2012] WASCA 146
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Michael v The State of Western Australia [2007] WASCA 100
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
MJW v The Chief Executive Officer of The Department for Child Protection [2012] WASCA 221
O'Connell v The State of Western Australia [2012] WASCA 96
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stone v Braun [2015] WASCA 103
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
ARCHER J:
Introduction
The appellant Mr SL seeks to appeal against a protection order made by Magistrate Schwass on 25 August 2016, in relation to a child JL. The appellant is the father of JL.
Background
JL was born in China in 2008. The second respondent, Ms LL, is the child's mother. She is presently living overseas.
JL came to live in Western Australia with her mother when she was about 9½ months old. The mother had a tourist visa for 12 months. When the tourist visa expired, the mother returned to China. JL remained in Western Australia. Initially, JL was in the care of a family friend, but, at some point prior to 22 August 2011, the appellant took her into his home.
On 22 August 2011, two officers from the Department for Child Protection and Family Support (the Department), Ms Bird and Mr Gasior, attended the appellant's home to investigate information that his home was unsuitable for a young child. The appellant says he was aggrieved by the manner in which Mr Gasior dealt with him.[1]
[1] The appellant's grievance is set out, among other places, in the appellant's written submissions at [28] ‑ [36]. Mr Gasior's account is in exhibit B [10] ‑ [24].
The appellant's reaction to the attendance by the two officers was to take JL into the Perth office of the Department the next day, and leave her there. She was 3 years old.
Having been left with the Department, JL was taken into provisional protection and care under s 37 of the Children and Community Services Act 2004 (WA) (the CCS Act).[2]
[2] Exhibit M in the substantive hearing before Magistrate Schwass, affidavit of Dionne Maria Fernandez (exhibit M) [8].
On 25 August 2011, the Chief Executive Officer of the Department (the CEO) made an application for a protection order in relation to JL under s 44 of the CCS Act.[3] Subsequently, there were numerous interim hearings in the Children's Court, and exchanges between the parties, in relation to contact and carer arrangements.[4]
[3] Exhibit M [9].
[4] See, for example, exhibit H [16].
In October and November 2013, a substantive hearing in relation to the CEO's application for a protection order was held over 12 hearing days in the Children's Court before Magistrate Crawford.[5]
[5] CEO v LHL [2014] WACC 4.
On 5 November 2013, Magistrate Crawford made a violence restraining order preventing the appellant from having any contact with JL for five years.[6]
[6] Exhibit M [19], and the actual order is exhibit AB.
On 29 May 2014, Magistrate Crawford made a temporary protection order for a period of six months,[7] publishing her reasons on 16 June 2014.[8]
[7] Exhibit M [14].
[8] The Children's Court has the power to make a protection order under s 45 of the CCS Act. Sections 54 ‑ 55 of the CCS Act regulate temporary ('time‑limited') protection orders.
Prior to the expiration of this temporary protection order, the CEO applied for an extension of the protection order for a period of two years.[9] Subsequently, the CEO filed an amended application, seeking a protection order for the period until JL was 18 years old (the Application).
[9] Section 56 of the CCS Act permits the CEO to make an application to the Court for the extension of a protection order (time‑limited). By s 56(3), once an application for an extension is made, the order remains in force until the application is determined.
A substantive hearing took place over six days in August 2016 in the Children's Court before Magistrate Schwass. On the final day of the hearing, 25 August 2016, the Application was granted (the Decision).
Since August 2011, JL has been under the care of the Department. She is now 9 years old.
The appellant filed a notice of appeal against the Decision on 25 October 2016, out of time. On 7 March 2017, Martino J ordered that the application for an extension of time to appeal and for leave to appeal be heard with the appeal.
Legal principles
Protection orders
Division 3 of the CCS Act makes provision for several types of protection orders, including a 'protection order (time‑limited)' and a 'protection order (until 18)'. These give the CEO parental responsibility for the child for the period specified in the order.[10]
[10] CCS Act s 54(1) and s 57(1).
If a protection order (time‑limited) is in place, the CEO may apply to the court for an extension of the order. If the court is satisfied that it is in the best interests of the child, the court may extend the order for up to two years, or revoke the order and make another protection order in respect of the child.[11]
Paramount consideration
[11] CCS Act s 56.
By s 7 of the CCS Act, the Children's Court, in performing a function or exercising a power under that Act in relation to a child, must regard the best interests of the child as the paramount consideration.
Conduct of protection proceedings
The Children's Court must ensure that proceedings conducted under the CCS Act, including protection proceedings, are dealt with justly. This includes ensuring that they are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.[12]
[12] Section s 37(2)(b) of the Children's Court of Western Australia Act 1988 (WA) and s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Protection proceedings are to be conducted with as little formality and legal technicality as the circumstances permit.[13] Further, protection proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceeding on the child and the child's family.[14]
Proof
[13] Section 145(1) of the CCS Act.
[14] Section 145(3) of the CCS Act.
In protection proceedings, the Children's Court is not bound by the rules of evidence and may inform itself on any matter in any manner it considers appropriate.[15] The standard of proof is proof on the balance of probabilities.[16] However, because of the seriousness of a finding that a child is in need of protection, the evidence needs to be of a relatively high degree of cogency and persuasive power.[17]
Appeals
[15] Section 146(2) of the CCS Act.
[16] Section 151 of the CCS Act.
[17] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [55] (Murray J).
A protection order made under s 45 of the CCS Act may be appealed under s 42 of the Children's Court of Western Australia Act1988 (WA) (CCWA Act).
Such an appeal is treated as an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). Therefore, leave to appeal is required. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[18] That means that the ground is required to have a real, rational and logical prospect of succeeding.[19]
[18] Criminal Appeals Act 2004 (WA) s 9(2).
[19] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The grounds of appeal on which appeals may be brought are that the court of summary jurisdiction made an error of law or fact (or both) or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[20]
[20] Criminal Appeals Act 2004 (WA) s 8(1).
On appeal, the Supreme Court may, among other things, dismiss or allow the appeal, set aside or vary the decision of the court below, or substitute a decision that should have been made by the court below.[21]
[21] Criminal Appeals Act 2004 (WA) s 14(1).
Further, by s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court is empowered to dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[22]
[22] MJW v The Chief Executive Officer of The Department for Child Protection [2012] WASCA 221 [79].
In endeavouring to establish a material error of law or fact or a miscarriage of justice, an appellant is confined to the grounds of appeal, the record of the proceedings before the magistrate, and any additional evidence admitted by the court under pt 4 of the Criminal Appeals Act.[23]
Where there is an allegation of a breach of procedural fairness
[23] MJW v The Chief Executive Officer of The Department for Child Protection [79].
In Mijatovic v Legal Practitioners Complaints Committee,[24] Martin CJ said:
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 ‑ 504, (cited with approval in SZBEL).
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
[24] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [3] ‑ [4], cited with implicit approval in Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [110] (Murphy JA, with whom Pullin JA agreed and, on this ground, Buss JA agreed).
In conducting protection proceedings, the Children's Court is obliged to afford procedural fairness to the parties.[25]
[25] AC v The Chief Executive Officer of The Department for Child Protection [2015] WASC 477 [27].
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.[26]
[26] AC v The Chief Executive Officer of The Department for Child Protection [35] (noting both the backward‑looking test and the forward-looking test), and the cases cited, in particular Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, 165 (Lindgren J), Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [129] (Edelman J), and Stone v Braun [2015] WASCA 103 [79] (Beech J, Buss JA & Mazza JA agreeing).
The grounds of appeal
The grounds of appeal are:
1.The learned Magistrate erred via the abuse of process and denial of natural justice, proceeding without having a Directions Hearing, incorporating as to how the case was to proceed, dates for filing of documents, documents to be filed, submission of witness list, etc in terms of the Court's guidelines.
2.The learned Magistrate erred in proceeding to trial, knowing full well that [LL], the mother, a key witness, had expressed early in 2016, her inability to secure leave to attend the trial, and appear as a witness, until October 2016, when there is a national holiday in China.
3.The learned Magistrate erred in proceeding to trial, knowing full well that the Applicant had been denied to summons documentation, exercise most relevant process, and call witness regarding my parenting of [JL], relationships since September 1981, after separating from ex‑wife, and question witness that have colluded with DCP& FS, to provide false evidence to the Court, to the detriment of justice, [JL], and the Applicant.
4.The learned Magistrate erred in repeating the denial in the first trial, by the learned Magistrate Crawford, for the applicant to summons witness/documentation, to facilitate a fair and just trial.
5.The learned Magistrate erred in disrupting the cross examination of the current Case Manager, when the Applicant was raising a most pertinent matter, dealt with in November, 2013, incorporated in the reasons of the outcome of the first trial, by the learned Magistrate Crawford, sought by DCP, and raised in two subsequent meetings, between the Applicant, and his observers, with the Case Manager, and her Team Leader.
6.The learned Magistrate has erred in the Case Management in the Court, the separation of meaningful, robust, arms‑length representation for [JL], and the lack of timely and meaningful outcomes to orders by DCP & FS [and an example is given].
7.The learned Magistrate has erred, in his responsibility as a diligent, learned, Court Magistrate, to facilitate with his colleagues, improvements in the procedures, practice notes, checks and balances, and training of staff, to minimize the abuse of flawed process that has occurred in this case, by rogue operators within DCP & FS, entailing fraudulent activities, the performance of the Child Representatives, and the passive representation of the mother, [LL], and the early representation of the Applicant, by Legal Aid, to perform in terms of their obligation as a legal practitioner, with primary obligation to the Court, and prioritising the statement of facts when known, at the first hearing mention, as to opposed to expressing opinion, to placate the DCP legal practitioner. Evidence has been misplaced, removed or lost by the Court, being the Skype records between [JL] and [LL], directed by the learned Magistrate Crawford in 2012, to be at least three times weekly. The procedure for securing evidence delivered, held and managed by the Court is flawed.
8.The abusive and fraudulent manner in which the proceedings in this case have been handled from Day one, violates the International Covenant on Civil and Political Rights of the United Nations, incurring unnecessary harm and suffering to [JL], [LL], the Applicant, the relevant family members, and the close, loving and supportive friends of [JL], before DCP & FS open involvement on 22nd August, 2011.
The appellant filed written submissions, dated 7 June 2017. However, those submissions were primarily directed to his complaints about the conduct of various departmental officers and legal practitioners who had been involved in the case since 2011.[27] The submissions did not develop the substance of any of the grounds of appeal. However, during the hearing of the appeal on 22 August 2017, the appellant was able to orally provide some details of his grounds.
[27] Indeed, the appellant complains about events in 2009 - see the appellant's written submissions [2].
Interlocutory hearings prior to the substantive hearing
Several of the grounds of appeal relate to matters that occurred, or did not occur, in two interlocutory hearings held on 1 and 12 August 2016, prior to the substantive hearing.
In the hearing on 1 August 2016, Magistrate Vose considered various applications brought by the appellant. The applications included an application to adjourn the substantive hearing, applications for witness summonses and applications for orders requiring the production of documents.
In the hearing on 12 August 2016, Magistrate Schwass considered further applications brought by the appellant. The applications included another application to adjourn the substantive hearing.
The substantive hearing before Magistrate Schwass
The substantive hearing commenced on 17 August 2016. Throughout the hearing, both the CEO and JL were represented by counsel. The appellant represented himself.
The mother's position
At the commencement of the hearing, the mother was represented by a legal practitioner, Mr Burra‑Robinson. He indicated that he had been unable to speak to his client. The magistrate adjourned the hearing to enable Mr Burra‑Robinson to confer with his client via the electronic equipment in the court's remote witness room, with the assistance of an interpreter. When the court reconvened, Mr Burra‑Robinson advised the court that he had been able to get clear instructions from his client. He advised the court that the mother understood that she needed to be in Australia to repair her relationship with JL, and that that was not possible. Accordingly, the mother was unable to oppose the order being sought by the Application. The mother did not consent to the order being made, but did not oppose it.[28] Mr Burra‑Robinson sought to be excused from further attendance at the hearing, and was excused by the magistrate.[29]
The position on behalf of JL
[28] ts 4, 17 August 2016.
[29] ts 9 ‑ 10, 17 August 2016.
Counsel representing JL said she supported the Application.[30]
The appellant's position
[30] ts 8, 17 August 2016 and ts 1076 ‑ 1079, 25 August 2016.
The appellant declined to advise Magistrate Schwass at the commencement of the hearing of what, if any, orders he would be seeking.[31] He confirmed that he opposed the order being sought by the Application.[32] He said he was 'probably … going to seek to take it out of this court'.[33] He said that he could not give the court any more details, as it was confidential. However, he intimated that his proposal involved a solution that did not involve the court at all.[34]
[31] ts 5, 17 August 2016.
[32] ts 5, 17 August 2016.
[33] ts 5, 17 August 2016.
[34] ts 5 ‑ 7, 17 August 2016.
After the CEO had closed his case on 24 August 2016, the magistrate asked the appellant if he intended to adduce evidence. The appellant said he would not be adducing evidence but would make submissions. The magistrate told the appellant that he could say whatever he wished to say in writing or verbally, and that he could take as long as he wished.[35]
[35] ts 1240, 24 August 2016.
Counsel for the CEO then made his closing submissions, completing them at approximately 2.35 pm.[36] The magistrate then asked the appellant if he wished to make his submissions at that time, or at 2.15 pm the next day. The appellant said no to both options, and said he would make written submissions. The magistrate said he could do that at 2.15 pm the next day.[37]
[36] ts 1250, 24 August 2016, time record.
[37] ts 1249 ‑ 1250, 24 August 2016.
The appellant did not appear in court at that time. It appears he had attended court earlier in the day to drop off a letter to the magistrate, but he did not remain.[38]
[38] ts 1075 ‑ 1076, 25 August 2016.
During the hearing of the appeal, the appellant was initially unable to articulate what orders he was seeking from this court if his appeal was successful. He initially said he would like 'live story work' to be completed for JL. When reminded of the scope of the court's powers on appeal, he said he would submit that the protection order should not have been made, and the court should make orders to facilitate the presentation of the material that he had sought to obtain previously. When again reminded of the scope of the court's powers, and after some further exchanges, he said he would submit that a temporary protection order should be made to allow time for the parties to submit materials as to the work he had done with children and for charity.[39]
The course of the evidence in the substantive hearing in the Children's Court
[39] ts 138 ‑ 141, 22 August 2017.
The CEO tendered affidavits of numerous witnesses in support of the Application, and called those witnesses to give evidence.
The appellant cross‑examined each witness, sometimes at length. The cross‑examinations were almost entirely directed to the appellant's complaints about how the Department had handled the case over the years. The appellant also complained about the lawyer who had represented JL at the hearing before Magistrate Crawford, and about Magistrate Crawford's conduct of that hearing. He complained about the availability and suitability of family resource employees, whose role was to facilitate contact between him and JL. He complained about the suitability of people who were given access to JL, including his adult daughter and her husband.
At the end of the second day of the hearing, the magistrate explained to the appellant the purpose of the hearing, and urged him to consider what order he wished to ask the court to make and to focus on what would be relevant to that.[40] The explanation did not alter the appellant's approach to the remainder of the hearing.
[40] ts 112 ‑ 113, 18 August 2016.
The appellant did not challenge any of the evidence that indicated JL was in a stable and loving environment with her care‑givers, Mr and Mrs J. In his cross‑examination of Mrs J, he did not suggest that she was not providing a loving environment for JL or that she, or her husband, were unfit in any way to care for JL.[41] He did not challenge the evidence that suggested it was in JL's interests to have the long term security that a protection order (until 18) would offer. He did not challenge the evidence that supported the Department's view that reunification with the mother was not appropriate. He did not seek to establish that reunification with himself was a viable option at that time.
[41] ts 135 ‑ 149, 22 August 2016.
Application for an extension of time to commence the appeal
The notice of appeal was filed on 25 October 2016, two months after the Decision was published. The appellant therefore requires an extension of time. The appellant swore an affidavit in which he said that he was not sent a copy of the Decision and that he was unaware it had been published until 27 September 2016. He said he obtained a copy of the Decision on that day. The appellant did not explain the delay between that date of 27 September 2016 and the date he filed the notice of appeal. However, that delay, and the overall delay, is relatively short. Counsel for the CEO did not submit that the delay was unreasonable or inadequately explained. The appellant is unrepresented. In those circumstances, an extension of time should be granted.
Materials relied upon
During the hearing of the appeal, the appellant confirmed that he relied upon the transcripts of 1 August 2016 and 12 August 2016 and his application for orders in relation to the production of documents.[42]
[42] ts 116, 138, 22 August 2017.
The appellant said that he also relied upon all of the exhibits he had filed during the substantive hearing and exhibits U, X and Y. I carefully reviewed all of these exhibits. None are relevant to the appeal.
Application to adjourn the appeal
At the commencement of the hearing of the appeal, the appellant sought to hand up photographs of his motor vehicles. The appellant said that his motor vehicles had been torched two nights previously when parked in his driveway.[43] The appellant was asked if this meant that he intended to seek an adjournment of the hearing of the appeal. After some discussion, it emerged that the appellant did seek to have the hearing adjourned, but not because his vehicles had been damaged. At first, the appellant said he was not ready to proceed with the appeal because a volume of material had 'surfaced' in the last month.[44] When this was explored, the appellant did not identify any material that had surfaced recently, but instead said that there were numerous documents that he needed for the appeal that he had been unable to obtain.[45]
[43] ts 47, 22 August 2017.
[44] ts 51, 22 August 2017.
[45] ts 51 ‑ 60, 22 August 2017.
One category of documents sought by the appellant was the transcripts of the Children's Court proceedings between 2011 and 2015. The appellant said he had been told that, given the passage of time, those transcripts were not available.[46] Accordingly, the appellant accepted that he could not obtain those transcripts even if the appeal was adjourned.
[46] ts 52, 61, 22 August 2017.
Other categories of documents sought by the appellant were self‑evidently not relevant to the appeal, being Skype records of contacts between the mother and JL, a letter from the Children's Court which the appellant described as threatening, file‑notes of meetings between the previous child representative and the mother, and CCTV footage alleged to show the previous child representative in an incident unrelated to JL's case.[47]
[47] ts 53 ‑ 56, 61 ‑ 76, 22 August 2017.
The appellant also sought those documents which he had unsuccessfully sought to summons in the hearing on 1 August 2016.[48] The appellant also said that he wanted to call Ms Bird, and other witnesses 'to the relevant actions that has allowed this case to be corrupted from day 1'.[49] He confirmed that these documents and witnesses were the same documents and witnesses that he had unsuccessfully sought to summons, and which were the subject of various grounds of appeal.[50] Therefore, the absence of these documents and witnesses could not impede the appellant's ability to proceed with the hearing of the appeal.
[48] ts 55, 58 ‑ 60, 22 August 2017.
[49] ts 58 ‑ 60, 22 August 2017.
[50] ts 55, 58 ‑ 60, 22 August 2017.
Accordingly, I refused to adjourn the hearing of the appeal.[51]
[51] ts 77, 22 August 2017.
Application to adduce fresh evidence
The appellant sought to tender photographs which he said showed the fire damage to two vehicles in his driveway. As this could not be relevant to the appeal, I refused to accept the photographs into evidence.[52]
[52] ts 87, 22 August 2017.
Ground 1
Ground 1 alleges that 'The learned Magistrate erred via the abuse of process and denial of natural justice, proceeding without having a Directions Hearing, incorporating as to how the case was to proceed, dates for filing of documents, documents to be filed, submission of witness list, etc in terms of the Court's guidelines'.
The appellant did not identify in his grounds of appeal or written submissions any particular guideline.
During the hearing of the appeal, the appellant said that, in referring to 'the Court's guidelines', he was not referring to any documented guideline. He said his complaint was not that the court had breached a guideline or that there was not a directions hearing. He said his complaint was that the directions hearing was a waste of time.[53]
[53] ts 77 ‑ 79, 22 August 2017 and see also ts 117, 22 August 2017. See also the appellant's written submissions [41].
Counsel for the CEO, in his written submissions, drew my attention to Practice Direction No 6 of 2006 of the Children's Court.[54] Paragraph 16 of that Practice Direction provides that the court 'may' set a date for a directions hearing, 'may' give directions in relation to the conduct of the proceedings, and 'may' deal with various matters. Paragraph 2 of the Practice Direction provides that the court may dispense with compliance with any requirement of the Practice Directions where considered necessary and appropriate.
[54] See also s 136 of the CCS Act in relation to 'pre-hearing conferences'.
The court's powers to make directions prior to a substantive hearing cannot mean that conducting a hearing without having made directions is an abuse of process or a denial of natural justice. The powers to make directions are just that - powers. The court is not obliged to make directions. The magistrate was required to conduct the proceedings efficiently, economically and expeditiously, with as little formality and legal technicality as the circumstances permitted. The essential requirements of a fair trial of the proceedings before Magistrate Schwass did not include a requirement that directions be given prior to the proceedings commencing.
The magistrate did not commit an abuse of process or deny natural justice in hearing the matter without making directions of the kind said to be required. Ground 1 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground.
Ground 2
Ground 2 alleges that the learned magistrate erred in proceeding with the substantive hearing while knowing that the mother was unable to attend.
As noted earlier, the appellant made two applications within a fortnight to adjourn the substantive hearing. Each was refused.
The first application was heard on 1 August 2016 before Magistrate Vose. In support of his application, the appellant submitted that the proceedings should have been 'curtailed day 1' in the Children's Court.[55] The appellant referred to his complaints about the conduct of those involved in the case over the years. He also said he was in no condition to appear in court around the time of JL's birthday. He said he would be psychologically incapable of doing his daughter credit in August.[56]
[55] ts 1044, 1 August 2016.
[56] ts 1044 ‑ 1046, 1 August 2016.
None of the other parties supported the appellant's application to adjourn the substantive hearing, including the mother who was legally represented in this hearing before Magistrate Vose.
On 12 August 2016, the appellant's second application to adjourn the substantive hearing was heard before Magistrate Schwass. In support of this application, the appellant submitted that the mother could be present if the substantive hearing was delayed and also that he had some urgent personal matters that meant it was likely he would be in the UK at the time of the substantive hearing.[57] The magistrate put to the appellant that the mother had been represented at the last hearing and had not supported the application to adjourn the substantive hearing. The appellant did not dispute that, but made submissions about the quality of the mother's legal representation.[58] Counsel for the CEO opposed the application, and submitted that JL was very keen to have the matter resolved as soon as possible.[59] The magistrate accepted it was in JL's best interests that the substantive hearing proceed. The magistrate noted that, if the substantive hearing was adjourned, it would not be heard for 12 months, given that it was listed for 15 days.[60] The magistrate refused the adjournment application, but directed that there be a video or audio link to the mother, if the mother wished to take advantage of that.[61]
[57] ts 2 ‑ 3, 12 August 2016.
[58] ts 7 ‑ 8, 12 August 2016.
[59] ts 5, 12 August 2016. Counsel referred to materials which showed that JL had given that indication to another person. In protection proceedings, by s 146(2) of the CCS Act, the Children's Court is not bound by the rules of evidence and may inform itself on any matter in any manner it considers appropriate.
[60] ts 12, 12 August 2016.
[61] ts 15, 12 August 2016.
It appears that a video or audio link was arranged to enable the mother to participate in the substantive hearing. As noted above, after taking instructions shortly after the substantive hearing commenced, the mother's legal representative Mr Burra‑Robinson advised the court that the mother did not consent to the protection order being made, but did not oppose it.[62] Mr Burra‑Robinson sought to be excused from further attendance at the hearing, and was excused.[63] Accordingly, the mother was able to participate in the substantive hearing by video or audio link if she wished to do so, but she elected not to.
[62] ts 4, 17 August 2016.
[63] ts 9 ‑ 10, 17 August 2016.
The magistrate was right, with respect, to refuse to adjourn the substantive hearing, for the following reasons.
First, the mother was able to participate in the substantive hearing by video or audio link if she wished. The mother, who was legally represented, elected not to participate in the substantive hearing. There was no legal requirement that the mother be present during the hearing.
Secondly, in exercising a power under the CCS Act, the paramount consideration is the best interests of the child.[64] The magistrate concluded that it was in JL's interests that the substantive hearing proceed, and there is no reason to doubt the correctness of that conclusion.
[64] Section 7 of the CCS Act.
Thirdly, the Children's Court is obliged to conclude protection proceedings as expeditiously as possible.[65]
[65] Section 145(3) of the CCS Act.
Fourthly, the mother did not oppose the CEO's application for a protection order (until 18).
Fifthly, the appellant did not say, at any time, that he wished the mother to give evidence at the hearing.[66]
[66] The appellant confirmed this was correct during the hearing of the appeal - see ts 91, 22 August 2017.
There was no error, and no miscarriage of justice caused, by the magistrate proceeding with the substantive hearing in the absence of the mother in these circumstances. Ground 2 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground.
Ground 3
During the hearing of the appeal, the appellant explained that the complaint in ground 3 is that the learned magistrate erred in proceeding with the substantive hearing when he knew Magistrate Vose had, on 1 August 2016, refused the appellant's applications for witness summonses and applications for orders for the production of documents.[67]
No error
[67] ts 79 ‑ 80, 22 August 2017.
It was not an error for Magistrate Schwass to proceed with the substantive hearing. There was no obligation on Magistrate Schwass to review the decision that had been made by Magistrate Vose on a previous occasion. Indeed, it would have been wrong for him to do so, and inconsistent with the statutory obligation to conclude the protection proceedings as expeditiously as possible in order to minimise the effect of the proceeding on the child and the child's family.
This is sufficient, in my view, to dispose of this ground of appeal. In any event, as will be seen, no miscarriage of justice was caused.
No miscarriage of justice
Witness summonses
During the hearing on 1 August 2016, Magistrate Vose addressed the appellant's applications to issue witness summonses.
The magistrate carefully explained to the appellant that he was not determining whether or not the proposed witnesses could be called, but merely whether they would be compelled to attend.[68] The magistrate asked the appellant to explain why he wanted each of the witnesses to be called and what the appellant expected them to say. After hearing submissions from the appellant, the magistrate refused leave to issue the summonses.[69]
[68] ts 1052 ‑ 1054, 1056 and 1064, 1 August 2016.
[69] ts 1055 ‑ 1064, 1 August 2016.
The appellant was not denied the opportunity to call any witness. Rather, he was denied summonses compelling them to attend.
There was no evidence that the appellant had sought to arrange the voluntary attendance of any of these witnesses to give evidence at the substantive hearing.
During the substantive hearing, the appellant claimed he understood from what Magistrate Vose had said in the hearing on 1 August 2016 that he was not allowed to call any witnesses.[70]
[70] ts 72, 18 August 2016.
In view of the careful explanation given by Magistrate Vose, it is difficult to see how he could have held that belief.
After the appellant had made this claim, counsel for the CEO pointed out that it was incorrect, and read out parts of what Magistrate Vose had said.[71] The appellant then said that the manner in which Magistrate Vose was conducting himself had made it very difficult for him to understand what the magistrate was saying and that he wanted a 'verbal transcript'.[72]
[71] ts 111 ‑ 112, 18 August 2016.
[72] ts 112, 18 August 2016. During the hearing of this appeal, the appellant said he was not sure Magistrate Vose had actually given that explanation, and again said he would like to have 'the verbal transcript'. This appeared to be an allegation that, while the transcript of the hearing before Magistrate Vose shows that he gave a careful explanation to the appellant, the appellant does not accept that Magistrate Vose actually said those words (ts 100, 22 August 2007). As noted elsewhere, the appellant considers that the written transcript does not reliably record what occurred in court.
Magistrate Schwass then spoke to the appellant about what the appellant was intending to submit the final orders should be. Magistrate Schwass began that discussion by saying it was 'just to get you to focus on what's relevant in terms of bringing other witnesses and giving your own evidence'.[73] Despite this, later in the substantive hearing, the appellant again asserted he was not allowed to call witnesses.[74]
[73] ts 112, 18 August 2016.
[74] ts 184, 22 August 2016.
The appellant clearly understood that he himself was able to give evidence, and expressly elected not to do so.[75] It is unnecessary to decide whether the appellant genuinely believed he was unable to call other witnesses. This is because, as will be seen, there is nothing to suggest that any of those witnesses could have given evidence relevant to the Application.
GS
[75] ts 1239 ‑ 1240, 24 August 2016.
The appellant sought to summons a woman GS who he said had falsely told the Department that he had made a threat about bikies.[76] On inquiry from Magistrate Vose, counsel for the CEO confirmed that the Department did not propose to rely in any way upon an allegation that the appellant had made a threat about bikies.[77] Therefore, even if GS had made that allegation, evidence from her about it would not have been relevant to the Application.
[76] ts 1056 ‑ 1060, 1 August 2016.
[77] ts 1058, 1 August 2016.
The appellant also said that GS had falsely claimed to have been involved in JL's care before 22 August 2011, and that the Department had relied on that in approving her as a carer for JL.[78] However, the CEO was not seeking an order that JL be put in the care of GS. As noted earlier, the CEO was seeking, by a protection order, that the CEO be given parental responsibility for JL. Even if GS had falsely claimed to have been involved in JL's care, it would not have been relevant to the determination of the Application. I also note that, well prior to the substantive hearing, GS had been replaced as JL's carer by Mr and Mrs J.
JC, KC and BH
[78] ts 1060, 1 August 2016.
The appellant said he sought to summons his ex‑wife JC, her husband KC, and his adult daughter BH to extract from them evidence to demonstrate that there had been a 'conspiracy to mislead the Court'.[79] During the appeal, the appellant explained he would have elicited from them evidence relating to the drug use of BH and her husband TH, the unsuitability of their home for a young child, an incident whereby their own daughter required stitches, the context of a statement the appellant had made about KC having been unfaithful, the source of the allegation that the appellant had threatened JC and BH with the police and with bikies, and the history of his relationship with JC.[80]
[79] ts 1055 ‑ 1056, 1 August 2016.
[80] ts 92 ‑ 96, 22 August 2017.
Irrespective of whether the appellant's concerns about BH and her husband were warranted, it would not have had any bearing on the merits of the Application. The CEO was not seeking an order that JL be put in the care of BH and her husband, or that they be permitted to have unsupervised contact with her. The CEO was seeking, by a protection order, that the CEO be given parental responsibility for JL. Even if there was evidence that BH or her husband should not be given unsupervised access to JL, it would not have been relevant to the determination of the Application.
The allegation that the appellant made about KC having been unfaithful was not relevant. Nor was its context.
The source of the allegation that the appellant had threatened JC and BH with the police and with bikies was not relevant, as discussed in relation to GS.
The history of the appellant's relationship with his ex‑wife JC was not relevant.
TH and his father
The appellant sought to summons his adult daughter's husband TH and TH's father. He said that he sought to elicit from them information to prove that it was inappropriate for JL to be in the care of BH and TH without supervision.[81]
[81] ts 1061 ‑ 1063, 1 August 2016.
For the same reasons as given in relation to JC, KC and BH, this would not have been relevant to the Application.
Documents
On 1 August 2016, the appellant sought orders that the Department produce various documents. His written application listed 10 items, of which all but items 1 and 5 sought orders for the production of documents.[82]
[82] Application signed by the appellant on 29 July 2016.
The appellant sought, as item number 2 on his application, 'copies of all audit and compliance reports in respect to this Case'. It appears that the appellant was contending that there would be no such documents and that this would explain why the problems in the system had not yet been exposed.[83]
[83] ts 1064, 1 August 2016.
Item 3 sought 'scheduled evidence to the Court, of all complaints [and] disciplinary records' in respect of various people, most of whom were not to be witnesses in the substantive hearing. The appellant submitted to Magistrate Vose that these documents would show the systemic problems in the Department, by showing a lack of accountability.[84]
[84] ts 1065, 1 August 2016.
Item 4 sought the most recent contact details for Ms Bird, who the appellant said he intended to call as a witness. The appellant submitted that she could
bring this matter to an end by stating what outlandish statements Ben Gasior made at my property, right, after accusing me of being a flight risk and saying, 'I can't' - I said, 'What, you've got an order out at immigrations to stop [JL] and I living [sic: leaving] the country?' 'You've got a warrant to be on my property today?[85]
This was a reference to the attendance of Ms Bird and Mr Gasior at the appellant's residence on 22 August 2011. As noted earlier, the appellant is aggrieved by his perception of how Mr Gasior dealt with him. During the substantive hearing, the appellant provided more detail of his complaint against Mr Gasior. He said that Mr Gasior, among other things, refused to shake his hand, said that the appellant was a flight risk, and said he would be back the next day with the police. The appellant said it was as a result of this visit that, the next day, he took his daughter into the Department's office and left her there.[86]
[85] ts 1067, 1 August 2016.
[86] See ts 202 ‑ 204, 22 August 2016.
Item 6 sought a schedule of dates and times when three of the departmental officers involved in JL's case 'were ever alone, or together with one another with [JL]'. The appellant submitted he sought this document because, he alleged, the Department had previously suppressed information regarding an aggravated sexual assault by a Departmental officer (not involved in this case). The appellant asserted that one of the officers involved in JL's case (not any of the officers named in this decision) had shown him, on the steps of the Children's Court, pornographic photographs of young girls. He said the same officer had inappropriately given JL a personal computer and asserted that the officer had been said to be 'too close' to JL by another officer.[87]
[87] ts 1068 ‑ 1070, 1 August 2016.
Item 7 sought 'confirmation or otherwise as to whether any actions involving the aforementioned three parties are being suppressed in a similar manner to the sexual offence of XXX'.
Item 8 sought 'all records in respect to the matters involving their legal practitioners'. The appellant said that this was to show how the CEO's legal practitioners 'had abused the Legal Practitioners Board under the government letterhead representing this state government department'.[88]
[88] ts 1071, 1 August 2016.
Item 9 sought evidence that the CEO had obtained the medical records of GS, JC and BH prior to either approving them as carers or allowing them to have unsupervised access to JL.
Item 10 sought 'evidence of the police records' of a report that the appellant claimed to have made to the police about the Department's conduct in relation to a 13‑year‑old child, not involved in this case.
Magistrate Vose ordered that the Department produce records of complaints and disciplinary records that relate to this particular matter in respect of the two departmental officers who were to be witnesses, but otherwise dismissed the appellant's application.
Whatever the merits of the appellant's perceptions and grievances, none of these matters could have had any bearing on the merits of the Application. Even if the documents might have shown systemic problems in the Department or inappropriate conduct by departmental officers, this would not have been relevant to the determination of the Application. Similarly, even if Ms Bird was to entirely corroborate the appellant's version of events on 22 August 2011, it would not have been relevant to the determination of the Application.
Irrelevance of witnesses and documents
There is no evidence to suggest that any of those witnesses could have given evidence relevant to the determination of the Application. Even if those witnesses had been summonsed, and even if they had been permitted to give the evidence the appellant sought to elicit from them, and even if that evidence supported the appellant's contentions, it could not possibly have made a difference to the outcome.
There is no evidence to suggest that any of those documents could have been relevant to the determination of the Application. Even if those documents were produced, and even if they supported the appellant's complaints against the Department, it could not possibly have made a difference to the outcome.
Proceeding with the substantive hearing in the absence of these witnesses and documents did not cause a miscarriage of justice.
No renewal of applications or complaints of prejudice
Finally, I note that the appellant did not renew his application for these witnesses to be summonsed before Magistrate Schwass. The appellant did not submit to Magistrate Schwass that he had tried to arrange for the voluntary attendance of witnesses but had been unable to secure their agreement to attend. The appellant did not submit to Magistrate Schwass that he was prejudiced by his inability to secure the voluntary attendance of witnesses.
In addition, with the exception of a matter relating to Ms Bird, discussed in relation to ground 4, the appellant did not renew his application for the documents before Magistrate Schwass. Although he complained that the court had previously refused to order the production of documents, he did not submit to Magistrate Schwass that he was prejudiced by the lack of those documents.[89]
Conclusion on ground 3
[89] The appellant acknowledged this during the hearing of the appeal - see ts 96 ‑ 97, 22 August 2017.
Ground 3 does not have a reasonable prospect of succeeding and I refuse leave to appeal on this ground. There was no error of fact or law, and no miscarriage of justice.
Ground 4
Ground 4 alleges that the learned magistrate erred in refusing to give leave to the appellant to summons witnesses and documentation.
During the hearing of the appeal, the appellant said he did not intend to suggest that Magistrate Schwass erroneously refused any applications in relation to witnesses or documents. Rather, his complaint was that Magistrate Schwass proceeded with the substantive hearing knowing that those applications had been previously refused.[90] He was also affronted by Magistrate Schwass asking him during the substantive hearing if he wanted to call any witnesses, given that his applications for witness summonses had been refused by Magistrate Vose.[91] Articulated in this way, this ground merely replicates ground 3.
[90] ts 97 ‑ 101, 22 August 2017.
[91] ts 100, 22 August 2017.
The appellant did not identify any refusal by Magistrate Schwass of an application for witness summons or documents. However, for completeness it is noted that, on a perusal of the transcript of the substantive hearing, the appellant did apply for an order that Ms Bird attend as a witness.[92] This was on the third day of the hearing.
[92] ts 183, 22 August 2016.
When the application was made, Magistrate Schwass inquired whether it had been raised previously. The appellant told him, in effect, that it had been raised previously on several occasions, but that it had been refused. The appellant clarified that his application before Magistrate Vose in relation to Ms Bird had been to obtain her contact details so she could be called as a witness, as distinct from an application to summons her to attend. Nevertheless, Magistrate Schwass was entitled to assume that Magistrate Vose had considered the merits of an application aimed at achieving Ms Bird's attendance at the trial, and had rejected it. There was no obligation on Magistrate Schwass to review the decision that had been made by Magistrate Vose on a previous occasion. Magistrate Schwass was required to conclude the protection proceedings as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child's family.
Further, as noted in relation to the discussion of ground 3, there is nothing to suggest that Ms Bird could give any evidence relevant to the Application. Magistrate Schwass' refusal to order that Ms Bird attend as a witness could not have occasioned a miscarriage of justice. Even if she had attended the hearing, and even if she had given evidence which supported the appellant's complaints in relation to the events of 22 August 2011, this could not possibly have made a difference to the outcome.
Ground 4 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground. There was no error and no miscarriage of justice.
Ground 5
Ground 5 alleges that the learned magistrate 'erred in disrupting the cross examination of the current Case Manager, when the Applicant was raising a most pertinent matter, dealt with in November 2013, incorporated in the reasons of the outcome of the first trial, by the learned Magistrate Crawford, sought by DCP, and raised in two subsequent meetings, between the Applicant, and his observers, with the Case Manager, and her Team Leader'.
During the hearing of the appeal, the appellant said that the 'pertinent matter' was the issue referred to by Magistrate Crawford in her reasons at [314].[93] This related to a violence restraining order that Magistrate Crawford had made against the appellant. In [314], Magistrate Crawford referred to the Department seeking a variation of the violence restraining order to permit contact with the appellant in the future should the child wish to have contact, subject to arrangements for contact being made and supervised by departmental staff. Magistrate Crawford noted that the Department had not filed a formal application for the variation.
[93] CEO v LHL [2014] WACC 4.
During the hearing of the appeal, the appellant said that the disruption alleged in ground 5 is not recorded on the transcript. He said that it occurred at the point of the matters recorded at the foot of page 1128 of the transcript, but that the disruption itself had been redacted from the transcript.[94] He said, from the bar table, that it was his experience of the Children's Court that matters said in court were not always reproduced in the transcript of hearings.[95]
[94] ts 133 and ts 134 ‑ 135, 22 August 2017.
[95] ts 146, 22 August 2017. See also the appellant's written submissions [42].
There is no evidence before me to justify a finding that relevant material has been omitted from page 1128. There is no evidence to suggest any deliberate editing of the transcript. Further, while I accept, as a matter of common experience, that transcription errors and temporary failures in the equipment do occur from time to time, there is nothing to suggest that any such error or failure occurred around page 1128. There is nothing on that page or the following page to suggest there was an interruption in the recording equipment. It is possible that some things said by the appellant were not recorded, as it appears that he moved away from the microphone, and Magistrate Schwass reminded him that he needed to stand near it.[96] However, there is nothing to suggest that any comments made by Magistrate Schwass were not audible.
[96] See the foot of ts 1128 and the top of ts 1129, 23 August 2016.
In addition, elsewhere in the transcript, the appellant cross‑examined the current case manager at length about the violence restraining order.[97] In those pages, Magistrate Schwass raised several valid points of clarification. Magistrate Schwass did not disrupt the appellant's cross‑examination.
[97] ts 1168 ‑ 1176, 23 August 2016.
Further, a review of the substantive hearing as a whole does not support an inference that the magistrate was being unduly restrictive. On the contrary, the magistrate permitted the appellant to cross‑examine witnesses at length about matters that were not of any relevance to the Application.
In relation to the case manager Ms Fernandez, the appellant began his cross‑examination on 22 August 2016. From the transcript, it appears that he cross‑examined her from approximately 2.16 pm[98] to 4.30 pm[99] on 22 August 2016. The appellant then cross‑examined her for the full sitting day of 23 August 2016. He concluded his cross‑examination at approximately 11.00 am on 24 August 2016.[100]
[98] ts 161, 22 August 2016.
[99] ts 206, 22 August 2016.
[100] ts 1210, 24 August 2016.
If there is any criticism to be made of the learned magistrate, it is that he perhaps was excessively accommodating to the appellant's desire to pursue irrelevant matters. However, I have no doubt that the magistrate was simply trying to ensure that the appellant, as an unrepresented litigant, was given every appropriate latitude.[101]
[101] See O'Connell v The State of Western Australia [2012] WASCA 96 [104] and Michael v The State of Western Australia [2007] WASCA 100 [65].
Ground 5 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground.
Ground 6
During the hearing of the appeal, the appellant confirmed that this ground asserted that the magistrate erred in his case management in two respects:
(1)in failing to ensure JL had meaningful, robust and arms‑length representation; and
(2)in failing to manage the failure of the Department to properly comply with court orders.
In relation to the first alleged failure, JL was represented throughout the hearing by a legal practitioner. There is nothing in the transcript to indicate any incompetence on the legal practitioner's part. JL's representative cross‑examined some of the witnesses, asking relevant and useful questions,[102] and made coherent closing submissions.[103] Magistrate Schwass made no error in respect of 'case managing' JL's representative.
[102] ts 132, 152 ‑ 153, 22 August 2016 and ts 1210 ‑ 1212, 24 August 2016.
[103] ts 1076 ‑ 1079, 25 August 2016.
In relation to the second alleged failure, even if the Department did fail to properly comply with court orders prior to the substantive hearing, it was not Magistrate Schwass' role or obligation to 'case manage' any such failures in the course of the substantive hearing. Any such failures could not have had a bearing on the determination of the Application.
There is nothing to indicate that either of the alleged failures could have caused a miscarriage of justice in the substantive hearing. Ground 6 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground.
Ground 7
Ground 7 alleges, in effect, that the learned magistrate erred in failing to improve the processes and procedures of the Children's Court in dealing with protection orders.
This is not an allegation of a matter capable of sustaining a ground of appeal under s 8(1) of the Criminal Appeals Act. It is not an allegation that the magistrate made an error of law or fact, or both, or that there has been a miscarriage of justice. It is therefore not a proper ground of appeal, and I refuse leave to appeal on ground 7.
Ground 8
Ground 8 alleges, in effect, that the manner in which the proceedings were handled violated the International Covenant on Civil and Political Rights of the United Nations.
The International Covenant does not form part of the domestic law of Australia.[104]
[104] De Alwis v The State of Western Australia [2012] WASCA 146 [26].
Ground 8 does not have a reasonable prospect of succeeding, and I refuse leave to appeal on this ground.
Conclusion
I do not give leave to appeal in relation to any of the grounds of appeal. Some are not proper grounds of appeal, and none have a reasonable prospect of success. In those circumstances, the appeal must be dismissed.
Orders
The application for an extension of time within which to commence the appeal is granted.
Leave to appeal is refused on all grounds of appeal.
The appeal is dismissed.
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