YPW v CEO, Department for Child Protection and Family Support [No 2]
[2015] WASC 294
•13 AUGUST 2015
YPW -v- CEO, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [No 2] [2015] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 294 | |
| 13/08/2015 | |||
| Case No: | CIV:2032/2015 | 11 AUGUST 2015 | |
| Coram: | MITCHELL J | 11/08/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | YPW CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT A R JH |
Catchwords: | Appeal Child protection Interim orders Turns on own facts |
Legislation: | Children and Community Services Act 2004 (WA), s 7, s 133, s 134 |
Case References: | Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 House v The King (1936) 55 CLR 499 Hughes v Gales (1995) 14 WAR 434 JT v CEO, Department for Child Protection and Family Support [2014] WASC 200 Keet v Ward [2011] WASCA 139 PR v CEO, Department of Child Protection [2008] WASC 228 Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 S (a child) v CEO, Department for Child Protection [2008] WASC 229 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 YPW v CEO, Department for Child Protection [2015] WASC 123 YPW v CEO, Department of Child Protection [2015] WASC 271 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent
A
Second Respondent
R
Third Respondent
JH
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE A HORRIGAN
File No : PER/PC 149 of 2015, PER/PC 150 of 2015
Catchwords:
Appeal - Child protection - Interim orders - Turns on own facts
Legislation:
Children and Community Services Act 2004 (WA), s 7, s 133, s 134
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Ms R Young
Second Respondent : Mr G J Athanasiou
Third Respondent : Mr G J Athanasiou
Fourth Respondent : In person
Solicitors:
Appellant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : Ferrier, Athanasiou and Kakulas
Third Respondent : Ferrier, Athanasiou and Kakulas
Fourth Respondent : In person
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
House v The King (1936) 55 CLR 499
Hughes v Gales (1995) 14 WAR 434
JT v CEO, Department for Child Protection and Family Support [2014] WASC 200
Keet v Ward [2011] WASCA 139
PR v CEO, Department of Child Protection [2008] WASC 228
Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172
S (a child) v CEO, Department for Child Protection [2008] WASC 229
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
YPW v CEO, Department for Child Protection [2015] WASC 123
YPW v CEO, Department of Child Protection [2015] WASC 271
- MITCHELL J:
Procedural background
1 This is the appellant's appeal against orders made by the Children's Court of Western Australia on 17 June 2015 and 20 July 2015, in relation to contact between the appellant and her children.
2 Much of the procedural background is set out in my previous decisions: YPW v CEO, Department for Child Protection1 and YPW v CEO, Department of Child Protection.2
3 In very short summary:
1. On 3 March 2015, an officer of the Department for Child Protection and Family Support (Department) took the appellant's children, who were at that time aged 6 and 8 years, into provisional protection and care.
2. On 10 March 2015, the Children's Court made an order having the effect that the children remain in provisional protection and care.
3. On 10 April 2015, I dismissed an application for judicial review of the decisions of 3 and 10 March 2015.
4. On 22 July 2015, I dismissed the appellant's application for judicial review of the above three decisions, but treated the balance of the appellant's judicial review application as an application for leave to appeal in relation to contact orders made by the Children's Court on 17 June and 20 July 2015.
Factual background
4 The circumstances in which the appellant's children were taken into provisional protection and care, and other events occurring up until 10 March 2015, are described at [59] - [152] of my decision in the first judicial review application.
Decision of 17 June 2015
5 Since they have been taken into care, A has resided at a residential care facility, as a result of some behavioural issues which precluded her placement with a foster family. R was placed with a foster family who also have the care of other foster children.
6 On 9 March 2015, the appellant applied to the Children's Court for orders returning each of her children to her care pending the trial of the Department's substantive application. Magistrate Horrigan delivered her decision in relation to that application on 17 June 2015.
7 The magistrate referred to the history of the matter, gave a summary of the voluminous evidence which had been filed in the matter and referred to the parties' positions. In essence, the position of the appellant, who at that stage was represented by counsel, was that the children should immediately be placed with her. The independent children's lawyer submitted that it was in the children's best interests to remain in the Department's care pending trial, but that they should have supervised contact with the appellant. The Department opposed the children being placed with the appellant on the ground that there was a risk posed by the appellant.
8 It is noteworthy that the children had supervised contact with the appellant on only one occasion on 4 March 2015, the day after they were taken into provisional protection and care. R also saw the appellant on 5 March 2015, when he ran away to his mother's home.
9 A significant piece of evidence on which the Department and independent children's lawyer relied in the Children's Court was a letter written by a psychiatrist, Dr Danny Shub. Dr Shub had been engaged by the Department, but had not had an opportunity to prepare a full assessment and report in relation to the appellant and her children. Dr Shub's letter relevantly read as follows:
Based on my clinical assessment of [A] on 25 May, as well as my initial review of the extensive background documentation in this matter, including various affidavits filed by both the Department for Child Protection and Family Support and [the appellant], I have significant concerns regarding [the appellant's] ability to adequately parent her children and regarding the risk of harm she poses to them.
Based on disclosures by the child [A] regarding physical and emotional abuse and abandonment of the children by themselves on the side of the freeway as punishment, as well as extensive concerns outlined in the background documentation provided by the Department for Child Protection and Family Support, and dependent upon the documented facts being found as accurate, I believe that the children are at significant risk of physical and emotional harm and do not believe it is advisable that they are returned to their mother's care or engage in any form of unsupervised contact with her at this time.
I also have major concerns regarding [the appellant's] psychiatric state and its effect upon her ability to parent her children. I have not assessed [the appellant] and I understand that she is currently not willing to participate in any form of psychiatric assessment.
In my view, the undertaking of a comprehensive independent psychiatric assessment is essential for [the appellant] - both in determining her level of psychopathology and providing recommendations for appropriate treatment or interventions, and in determining the likely effect of her psychiatric morbidity upon her capacity to parent her children.
I would strongly recommend that a psychiatric assessment of [the appellant] be arranged before this case proceeds any further. I am available to conduct this assessment if required.
10 The magistrate's reasons for declining to exercise her discretion to place the children with the appellant were as follows:
In addition to that it would seem that, given that Magistrate Hogan's findings as to the mother's state of mental health; it did seem appropriate that there be some consideration given to an assessment of her mental health status as suggested by Dr Shub. Whether it's by Dr Shub or another makes little difference as far as I am concerned. As I've already noted, that path was clearly rejected by the mother; which is a bit of shame really because it seems to me that, were the mother to submit to an assessment by an independent psychiatrist, it may well have clarified her situation in a positive sense.
The fact that she refused, point blank, to engage was a concern, particularly in light of his Honour's findings. There are, as I've already indicated, the numerous matters that have been referred to in the body of the affidavit materials; particularly in relation to the mother hitting the children repeatedly with the surfboard rope and the broom handle and shouting and yelling at the children, abandoning them at the side of the road.
But given the myriad concerns raised in the affidavit material, at this stage my view is that it is not appropriate to make the children into experiments. I do come to the conclusion that I'm not prepared, at this stage, to place the children with the mother.
11 After referring to steps she proposed to take to secure an earlier hearing of the Department's substantive application, and a further directions hearing in a fortnight's time, the magistrate referred to the issue of contact in the following terms:
However, it strikes me that the mother should have contact with both children. The contact should be together with her on a very regular basis. That is because I'm mindful of the fact that mother has had the care of these children from April last year until their removal in March. As I've already indicated, it is a terrible outcome for these children that the placement application was not determined very shortly after it was originally lodged.
And I've already referred to that as being a disgrace because children, as I say, are not experiments. They should … have their applications heard and determined, as should parties, at the earliest possible opportunity. It strikes me that it being a two year protection order that is sought by the department is very much in the children's interest to be having a very positive relationship with their mother.
12 There was then an extensive discussion between the magistrate and the parties as to the contact regime which would be provided for in the court orders. The magistrate considered a wide range of issues in determining the appropriate orders.
13 The magistrate took what was, in my respectful view, an appropriately practical approach to the formulation of the contact orders, clearly guided by what was in the children's best interests and the objective of securing their eventual return to the care of their mother. The approach adopted by the magistrate is exemplified by the following passage of the transcript:
I've been at pains to say I'm not looking at unsupervised contact at the moment and I'm going to be monitoring the matter. It's coming back in a fortnight before me, so I would expect that whatever contact occurs between now and then is reported back to the Department, that's circulated as information to the ICL, to [the appellant through her counsel], … and obviously, to the court, so we all are on the same page because if the contact goes really well, I can't quite imagine how dreadful it would be to actually be having contact with somebody watching me have contact with my child.
It becomes artificial; you feel like you're in a goldfish bowl. If things go disastrously, well, then I have different methods, but I think that really, what we need to be doing, is if we're looking at reunification, which is what your application is, then we have got to start doing something sooner rather than later.
So my view is softly, softly. I would like to start with some supervision. I would like some reporting back. I plan to monitor this matter. I plan to make sure we get a different trial date as soon as possible. So, you know, I'm not sure how long it's going to take, but in the meantime I have every intention of making sure that the matter remains on track in every conceivable way.
14 The process resulted in interim orders being made by the magistrate on 17 June 2015. The orders provided for R to have contact at a church in Osborne Park on Tuesdays between 3.30 pm and 5.30 pm. A was to have contact between 3.30 pm and 5.30 pm on Wednesdays at a place to be agreed between the Department and the appellant. Both children were to have contact with the appellant on Fridays between 3.30 pm and 5.30 pm at a place to be agreed. Both children were to have contact on Sundays between 2.00 pm and 6.00 pm at the home of O, with whom the appellant was residing and fulfilling the role of carer.
15 Both children were to have telephone contact on Mondays, Thursdays and Saturdays at a time to be agreed. A was also to have telephone contact at a time to be agreed on Tuesdays and R was to have contact at a time to be agreed on Wednesdays.
16 These orders required very little cooperation between the appellant and the Department. All that remained to be agreed was the times of telephone contact on specified days and the places at which contact would occur on Wednesdays and Fridays. This did no more than provide some degree of flexibility in the children's lives, which also involved school and after school activities.
Second placement application
17 The contact regime provided for in the orders of 17 June 2015 was not implemented in the manner which the magistrate had contemplated. Unfortunately, the appellant continued a combative approach to her dealings with the Department. There was uncontested evidence that the appellant initially refused to meet with the Department to discuss contact arrangements and insisted on communicating by email. Eventually, even email contact was refused.
18 In very brief summary, there was evidence of face-to-face contact between the appellant and her children on a number of occasions. These occasions included, at least, Friday 26 June 2015 with both children, Sunday 28 June 2015 with both children and Tuesday 30 June 2015 with R. There was also evidence of telephone contact having occurred, although an attempt at telephone contact with R failed on Monday 22 June 2015 for reasons it is unnecessary to describe here. There was also evidence that, on other occasions, contact did not occur because the Department would not agree to transport the children to the appellant's residence in Bentley and the appellant would not travel to Joondalup where the Department had indicated contact could occur. On two occasions, Friday 19 June 2015 (at Joondalup) and Sunday 21 June 2015 (at the Chinese Community Church), the appellant did not attend at the time anticipated by the Department or inform the Department that she would not be attending.
19 On 30 June 2015, the appellant filed applications in the Children's Court seeking interim orders for placement of the children with her on the ground that the Department had failed to provide contact. These applications came before Magistrate Horrigan on 2 July 2015.
20 The magistrate was critical of both the Department and the appellant for failing to arrange contact as required by the orders, and indicated that she expected the parties to comply with the orders. She adjourned the applications to 13 July 2015, to enable papers to be served on the independent children's lawyer. She also gave the Department leave to file an application to vary the contact orders, which the Department did on 9 July 2015.
21 There was evidence of the appellant having contact with the children after 2 July 2015, including telephone contact, as well as face-to-face contact by the appellant with both children on 5 July 2015 and with R on 7 July 2015.
22 Officers of the Department gave evidence as to deterioration of the children's behaviour after contact, conversations which carers or departmental officers regarded as inappropriate and the children being significantly upset after some incidents of contact. That evidence is in the appeal books and, while I have considered all of the evidence, it is unnecessary to set it out in detail here.
23 The Department's applications for a variation of the contact orders, filed on 9 July 2015, proposed a reduction in face-to-face contact and a suspension of telephone contact.
24 There were three reports put before the magistrate on 13 July 2015. Two, dated 11 March 2015 and 29 May 2015, were by Tony White, a psychologist, who reported that he had counselled the appellant and her children on multiple occasions and found the appellant to be psychologically well-functioning. Mr White spoke in very positive terms of the relationship between the appellant and her children.
25 The third report, dated 30 June 2015 (although this date may be in error) and prepared by Dr Shub, gave rise to greater concerns. I shall not quote from the report which is of significant length, and should properly be read as a whole. Dr Shub ultimately recommended that the children should remain in care and expressed some concerns about the current contact arrangements.
26 It should not be thought from my lack of detailed reference to them that I have ignored a series of affidavits filed by the appellant in the Children's Court. Much of the material in those affidavits went to the issue of whether the children ought to have been removed at all, and made various allegations of misconduct against departmental officers.
27 The magistrate heard argument on the appellant's and Department's applications on 13 July 2015. At that time, she indicated that a trial of the Department's substantive application would be listed from 21 September 2015 - 5 October 2015. After receiving submissions, the magistrate reserved her decision until 20 July 2015.
28 The magistrate delivered her reasons for decision on 20 July 2015. The magistrate, noting that, if anything, the contacts have been more fraught, considered that there had been insufficient change which had occurred to that point in time and that in a short period of time, the matter was going to be aired with a full trial.
29 The magistrate expressed her conclusion in the following terms:
In addition, the negatives in the current contact regime do give me some concern for how placement might function. There needs to be respect for the children and their needs … and compliance and respect with court orders. There also needs to be what I consider to be a consistent and appropriate approach by mum in relation to these matters, given that there is only now nine weeks to trial, and the reality is that any gaps in the contact are doubtless going to be food for feasting by the department at any trial.
So at this stage, my conclusion is I'm not prepared to revisit my placement decision, especially, as I say, the trial proper is so close in time, and all of these issues can be tested properly in cross-examination. I appreciate the respondent mother's concerns, but as I have already indicated, I need [the appellant] to demonstrate cooperation with the department in her children's best interests, not an ongoing war of words.
Ultimately I anticipate that the reunification of the children with their mother is the path, and I have said this before on transcript, and I say it again and repat it again; that is a completely achievable outcome, but no one gets anywhere with, as I say, a war of words. I gave my reasons previously in relation to the contact because I wanted to ensure a significant and a liberal contact regime.
I think that to do anything less will take away the prospect of mother being able to demonstrate, in the next nine weeks in particular, that she is quite capable of parenting these children in an appropriate and consistent way. The reasons I gave were after a very long hearing. They were with all counsel making suggestions, coming up with solutions as to how mother could continue to have an ongoing, significant, detailed, and I had hoped, supportive relationship with her children, but the reality is at this point in time, it is realistically inappropriate, as far as I'm concerned, to change the contact regime, because of the outcome I wish to achieve.
I do note, however, that if the contacts are not take up from 20 July 2015 onwards, if there is further demonstration of unproductive or inappropriate behaviour on the part of the respondent mother, or if there is any behaviour inconsistent with my order such as not attending Joondalup, discussing inappropriate things with her children, making issues with the department the primary objective of this proceeding as opposed to making the children the primary objective then I anticipate that the department will seek leave again to apply to vary the order.
So at this point in time, I'm not persuaded that it's appropriate, notwithstanding that there have been inappropriatenesses occurring during contact, but given that there are nine weeks to trial, my whole aim is to ensure that the contact regime continues subject to [the appellant] and the department working cooperatively. If that does not happen, and if there is any further report of contacts not being taken up as appropriate, not in compliance with what I previously ordered, there will be a further application to vary or suspend contact completely.
So in relation to this matter, the respondent mother's application for contact is dismissed. Likewise, the application for a variation of the contact order by the department is dismissed, and at this point in time I will adjourn the matter for trial to 21 September.
Legal principles governing the appeal
30 I have set out the general scheme of the Children and Community Services Act 2004 (WA) (CCS Act) in my previous decision, and I shall not repeat the outline I gave in that case.
31 The power to make an interim order is conferred by s 133(1) of the Act.
32 Section 133(2)(a) and s 133(2)(f) of the CCS Act relevantly provide:
(2) An interim order is an order as to any one or more of the following:
(a) that the child is to be returned to, placed with, or remain with a parent of the child;
…
(f) contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life, including that a person specified in the order is not to have contact (whether direct or indirect) with the child[.]
34 The power to make an interim order must be exercised consistently with the CCS Act and in particular, the magistrate must regard the best interests of the child as the paramount consideration.3 Some particularly relevant factors in considering what is in the best interests of the child in this case include:
(a) the need to protect the child from harm;
…
(d) the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
…
(h) the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life[.]
35 The magistrate may also vary interim orders upon application by a party. However, a variation or revocation of interim contact orders can only occur if:4
(a) new facts or circumstances have arisen since the interim order was made or last varied, as the case may be; or
(b) each party consents to the action.
36 The role of the magistrate was to determine whether it was appropriate to grant the interim orders sought: that is, to make a discretionary decision.5 The fact that the appeal is from a discretionary judgment is significant.
37 Before an appellate court may reverse a decision founded upon the exercise of a judicial discretion, it must be satisfied, by reference to well established principles, that the discretion has miscarried.6 As the Court of Appeal noted in Keet v Ward:7
In the absence of express error, an appellate court is not entitled to substitute its own decision for that which is the subject of the appeal merely because it prefers a different result or even merely because it thinks that a different result would be more just and equitable. Before it intervenes, it must be satisfied that the decision is clearly wrong. In the absence of an identifiable error of fact or law (and none has been identified in this case) the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes. In short, the appellate court may only intervene in a case where no express error is revealed if upon the facts the decision is 'unreasonable or plainly unjust'. (citations omitted)
38 Interim orders of the kind described in s 133(2)(f) of the CCS Act, a refusal to vary those orders under s 134 of the CCS Act and a refusal to make orders of the kind described in s 133(2)(a) of the CCS Act may be appealed under s 41 and s 42 of the Children's Court of Western Australia Act 2004 (WA).
39 The appeal is treated as an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.8
40 The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that a ground has a real, rational and logical prospect of succeeding and is more than arguable.9
Grounds of appeal
41 The appellant has sought leave to appeal on 38 grounds, supported by 140 pages of written submissions. While I have considered each of the grounds, it is not useful to set out all of the material in these reasons. I shall do my best to attempt a very brief summary to assist the reader to understand these reasons.
42 In essence the appellant alleges that the magistrate failed to have regard to provisions of the CCS Act which required the magistrate to act in the best interests of the children, and failed to take into account various aspects of the evidence and the children's expressed wishes to return to their mother's care. The appellant says that it was not open to the magistrate to make the orders, and that the magistrate evidenced bias against her. Various other matters, which in my view could not possibly lead to an appeal being allowed, are also alleged.
43 Having considered those grounds and submissions, many of which are raise irrelevant matters or involve legal misconceptions, I am not satisfied that any of the grounds have a reasonable prospect of success. It follows that I am not prepared to grant leave to appeal on any of the grounds, with the consequence that, under s 9(3) of the Criminal Appeals Act,the appeal is taken to have been dismissed.
44 In my view, it was plainly open to the magistrate to exercise her discretion to make contact orders and refuse to make placement orders in the manner which she did. There was evidence capable of supporting a conclusion that it would not be in the best interests of the children to return them to the appellant's care or to allow unsupervised contact at that time. The applications for interim orders were not the occasion to resolve conflicts in the evidence, whether between the evidence of the departmental officers and the appellant or later, when the second set of applications were made, between the reports of Mr White and Dr Shub. The interim orders would only operate until the trial listed nine weeks from the date the magistrate refused to vary the orders. The trial would be the appropriate occasion for resolving those conflicts, and the existence of the evidence raising concerns about the children's best interests provided grounds for maintaining the status quo as regards care or placement arrangements until the trial.
45 In the meantime, it was entirely appropriate for the magistrate, on 17 June 2015, to put in place an interim contact regime with a view to seeing how things went over the short term. It was open to the magistrate to give the parties some flexibility in the contact arrangements and to allow them to attempt to seek agreement as to some locations and times. The magistrate was clearly attempting to secure the best interests of the children and put in place a regime which would facilitate the return of the children to the appellant's care. When things did not go well, the magistrate thought it appropriate to provide the appellant with another opportunity to show that she was capable of parenting the children in an appropriate and consistent way. Importantly, although there had been significant issues, by 13 July 2015, contact was, in fact, occurring pursuant to the orders of 17 June 2015. I am unable to perceive any error of fact or law in the magistrate's approach.
46 I do not find that the magistrate failed to take any of the evidence into account. The magistrate indicated in her reasons for decision that she considered all of the affidavit material in reaching her decision. She was not in a position to determine factual disputes on the papers, but appropriately considered what was in the best interests of the children.
47 There was also evidence before the magistrate that it would not be in the best interests of the children to have contact in the Bentley area, where the appellant resided, as opposed to the Joondalup area where the children's care arrangements and school were located on some occasions. Contact in Joondalup on weekdays avoided the children having to leave school early, travel an extensive distance, and return home late in the evening. The magistrate could appropriately consider that this made it inappropriate to vary the contact orders to require contact at the appellant's residence.
48 There was also a suggestion in the appellant's grounds that the magistrate has displayed actual bias or that a fair minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the questions she was required to decide.10 For the reasons explained in the first respondent's written submissions, this suggestion is entirely without foundation. I agree with the first respondent's submission that the magistrate acted in a fair and even-handed manner, appropriately exercising her powers to manage the proper conduct of litigation in her court.
49 It is also relevant to note that the appeal is from an interim order. I accept the first respondent's submission that the interlocutory nature of the decision should be taken into account in determining whether leave should be granted, as appellate courts are reluctant to interfere in proceedings on foot, except where there is a clear case for intervention.11
50 In all the circumstances I am not satisfied that the appellant has established any arguable ground of appeal from the orders made on 17 June 2015 or 20 July 2015. In light of that conclusion, and having regard to the fact that the appeal is against interim orders which will only operate until the commencement of the trial less than six weeks from now, I am not prepared to grant leave to appeal on any of the grounds. The appropriate order is that leave to appeal be refused on all grounds, with the consequence that the appeal is taken to be dismissed.
1YPW v CEO, Department for Child Protection [2015] WASC 123.
2YPW v CEO, Department of Child Protection [2015] WASC 271.
3 Section 7 of the CCS Act, read with s 8.
4 Section 134(3) of the CCS Act.
5JT v CEO, Department for Child Protectionand Family Support [2014] WASC 200 [24].
6Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 [33], applying House v The King (1936) 55 CLR 499, 504 - 505.
7Keet v Ward [2011] WASCA 139 [17].
8 Section 9(1) of the Criminal Appeals Act 2004 (WA).
9 Section 9(2) of the Criminal Appeals Act 2004 (WA); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
10Ebner v Official Trustee in Bankruptcy [2000] HCA 63;(2000) 205 CLR 337 [33].
11PR vCEO, Department of Child Protection [2008] WASC 228 [42]; S(a child) vCEO, Department for Child Protection [2008] WASC 229 [50]. See also Hughes v Gales (1995) 14 WAR 434, 439.
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