Chief Executive Officer, Department of Communities v BFH [No 2] - [2017] WASC 366

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES -v- BFH [No 2] [2017] WASC 366

CORAM: BANKS-SMITH J

HEARD: 11 DECEMBER 2017

DELIVERED : 13 DECEMBER 2017

FILE NO/S: SJA 1060 of 2017

BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Appellant
AND
BFH
First Respondent
ABT
Second Respondent
KM
Third Respondent
TR (a child)
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HOGAN
File No  :CC 181 of 2017

Catchwords:

Appeal - Appeal from magistrate's dismissal of application for protection order - Whether natural justice required notice of hearing - Whether natural justice required opportunity to crossexamine witnesses

Legislation:

Children and Community Services Act 2004 (WA), s 28(2), s 133(2)

Result:

Appeal upheld
Retrial ordered

Category: B

Representation:

Counsel:

Appellant:     Ms C Taggart
First Respondent           :     No appearance
Second Respondent      :     Ms A Johns-Kula
Third Respondent          :     In person
Fourth Respondent        :     Not applicable

Solicitors:

Appellant:     State Solicitor for Western Australia
First Respondent           :     No appearance
Second Respondent      :     Kimberley Community Legal Services Inc
Third Respondent          :     In person
Fourth Respondent        :     Not applicable

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

AC v Chief Executive Officer of the Department for Child Protection and Family Services [2015] WASC 477
Chief Executive Officer, Department for Communities v BFH [2017] WASC 324
D v Chief Executive Officer, Department for Child Protection and Family Support [2016] WASC 289
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
SL v Chief Executive Officer of the Department for Child Protection and Family Support [2017] WASC 293

BANKS-SMITH J: The appellant, the Chief Executive Officer of the Department of Communities (Department) seeks leave to appeal an order made by the Children's Court on 13 October 2017 dismissing an application for a protection order (time‑limited) in relation to a child, TR. TR was at that time in foster care.
On 7 November 2017 Hall J granted a stay order pending appeal and as a result the child remains in provisional protection with foster carers.
A decision of a magistrate in the Children's Court dismissing an application for a protection order may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) as if it were a decision by a court of summary jurisdiction.[1]
[1] Children's Court of Western Australia Act 1988 (WA), s 42.
The application for leave was heard on an urgent basis. It was supported by the third respondent and opposed by the second respondent.

Background

The first respondent to the appeal is the child's mother. The Department has been unable to locate her for some time, and on 1 December 2017 I made a substituted service order with respect to service of the notice of appeal.[2] I am satisfied there has been compliance with the terms of that order.
[2] Taking into account r 65 and r 69 of the Criminal Procedure Rules 2005 (WA) and s 10 and s 40(1)(l) of the Criminal Appeals Act 2004 (WA).
The mother has not been in contact with any of the parties about the appeal, has not been in contact with the court and did not appear at the hearing of the appeal.
The second respondent is the child's maternal grandmother. The third respondent is the child's father. The fourth respondent is the child. The child is not separately represented but is under the day‑to‑day care and responsibility of the Department.
I will refer to the parties as the Department, the mother, the grandmother, the father and the child respectively.
Justice Hall usefully set out some background matters in the reasons published with respect to the stay order. I respectfully adopt his Honour's summary:[3]
The child was born on 30 June 2016. Initially she and her mother lived with the grandmother in Broome. There were concerns that the mother was experiencing the emergence of post-partum psychosis. She and the child were admitted to Fiona Stanley Hospital in September 2016. After that admission a 'care and safety plan' was developed in relation to the child on or about 29 and 30 September 2016.
The mother and child returned to Broome and continued to live with the grandmother until late January or early February 2017. There is conflicting evidence as to what caused that arrangement to end. On 4 February 2017 the Department arranged short-term accommodation in Broome for the mother and child. On 21 February 2017 the mother and child were assisted by the Department to travel to Perth to obtain refuge accommodation.
Between 16 March 2017 and 3 May 2017 the Department received a number of reports regarding the mother's wellbeing and her care for the child. On 30 April 2017 the Department was contacted by a clinical nurse at the Bentley Mental Health Service seeking that a placement be arranged for the child. That placement was sought because the mother had presented to the Bentley Hospital indicating that she did not feel that she could continue to care for the child. The mother was offered voluntary admission to the hospital and entered into a negotiated placement agreement by which the child was placed in the Department's care for two days.
On 2 May 2017 the mother expressed a desire to terminate the negotiated placement agreement and to leave the hospital. The child was then taken into provisional care on 3 May 2017. The appellant then made an application to the Children's Court for a protection order (time limited) for one year. The grandmother sought to be, and was, joined as a party to that proceeding. Subsequently the grandmother sought an order placing the child in her care on an interim basis. The grandmother filed affidavits which deposed to the mother's desire for the child to live with her.
The application by the grandmother for an interim placement order was filed in the Children's Court on 4 October 2017. The application was opposed by the appellant due to concerns regarding whether the grandmother was suitable to be the child's carer. It is unnecessary to detail the alleged basis for that concern. An affidavit in support of the Department's opposition to the application was filed on 12 October 2017.
The [grandmother's] application for an interim placement order was listed to be heard on 13 October 2017. Both the appellant and the grandmother sought an adjournment of that hearing. The magistrate who presided at the hearing declined the adjournment applications. During the course of the hearing the learned magistrate advised the parties that, rather than dealing with the interim placement application, he intended to determine the appellant's application for a protection order. No witnesses were called and no expert evidence was available. Although an order had been made for a paternity test, the test results had not yet been obtained, so the father was not represented.
The magistrate determined the matter on the papers that had been filed to that date. At the conclusion of the hearing the magistrate dismissed the appellant's application for a protection order in respect of the child. That dismissal is the subject of the appeal.
The mother was not present at the hearing on 13 October 2017. She was represented, but her lawyer withdrew as he had been unable to obtain any instructions from his client. After the dismissal decision, Departmental officers made an assessment of the child's needs. The mother's whereabouts were unknown and paternity had not at that stage been confirmed. The grandmother was resident in Broome and the Department's concerns regarding her suitability to be the child's carer had not been dealt with. In these circumstances a decision was made to return the child to provisional protection and care pursuant to s 37 of the Act. This resulted in the child staying with the same foster carers with whom she has lived since May 2017.
[3] Chief Executive Officer, Department for Communities v BFH [2017] WASC 324 [4] ‑ [10].
I add that the father's paternity was established in late October 2017 and although he does not have legal representation, he has participated willingly in the appeal process both at a directions hearing and the appeal hearing.

The 2017 applications under the Children and Community Services Act

The child came under the provisional care of the Department under s 37 of the CCS Act on or about 3 May 2017. The Department's application dated 4 May 2017 for a final protection order (time‑limited) was made under s 44 and s 28(2) of the Children and Community Services Act 2004 (WA) (CCS Act).
On 4 October 2017, the grandmother filed an application for an interim placement order under s 133(2)(c) of the CCS Act, which provides that a child may be placed with a person on an interim basis as approved by the court following a report, whether oral or written from the CEO as to the person's suitability. That application was listed to be heard before the learned magistrate on 13 October 2017.

The hearing of 13 October 2017 hearing

It is not in issue that the day before the hearing, the grandmother requested an adjournment of the hearing of her application but the matter remained listed.
The following unfolded at the hearing on 13 October 2017:
(a)the magistrate noted there was no father named;
(b)it was clear that the Department had contact details for the identified father and that the paternity test was to be done soon;
(c)the grandmother's counsel said that there should be a protection order but not for a year because that assumes reunification with the mother 'and the mother has said that she's not going to reunify with the child';
(d)the magistrate said he was thinking of having a hearing on the substantive application (the Department's application) on the papers the same day (the papers comprising affidavits filed on behalf of the Department and the grandmother);
(e)the Department's counsel said the application should wait until the identity of the father was confirmed and that she did not want the substantive hearing to proceed on the papers;
(f)the former counsel for the mother (Mr Athanasiou, who seems to have appeared as a courtesy to the court) said that he had no instructions save that back in June 2017 the mother told him that as to the grandmother's application she wanted the child to go and live with her mother in Broome;
(g)the magistrate said that such information '[is] consistent with what [the grandmother's counsel] says today, the mother does not want the child. That amounts to abandonment. That amounts to grounds for a protection order being made although it's not pleaded';
(h)Mr Athanasiou then said, 'those instructions were never given to me in any clear detail';
(i)counsel for the grandmother said that if hearing the substantive application might delay the placement then the grandmother would prefer the child to go to Broome and have the substantive application heard at a later time;
(j)the magistrate then said there was no s 133(2)(c) report for the purpose of the grandmother's application;
(k)counsel for the Department responded by saying its caseworker was in a position to provide an oral report under s 133(2)(c);
(l)Mr Athanasiou said that (without instructions) the mother has not been given procedural fairness as she has the right to know the court is going to proceed on the papers to determine the substantive application;
(m)the magistrate accepted that but said that the fact Mr Athanasiou had made attempts to contact her and she had not got back to him might be sufficient to satisfy natural justice;
(n)counsel for the Department said that if the court pursued the hearing that day the child would not be in professional protection and that the Department could not ensure the child was safe; and
(o)counsel reiterated that she wished to make sure the father had a say in the proceedings.
At that point, the magistrate determined that he would hear the Department's application on the papers that day and Mr Athanasiou withdrew.
The following exchange occurred between the magistrate and the Department's counsel:[4]
[Magistrate] What's your submission? In order to determine it on the papers that means I will determine it on the evidence that's in the papers, but the parties should be given an entitlement to make submissions in order to give them natural justice. So I'm giving natural justice and I want to know what you said about why I should make a protection order.
[Counsel] But we don't want you to make that order today, your Honour.
[Magistrate] But I am going to determine it today one way or the other. It may not be made. It may be dismissed.
[4] ts 8.
Counsel for the Department then outlined concerns about whether the mother was able to look after the child. She referred to the mother and child being 'kicked out' from the grandmother's home and the Department finding them care in Perth. The magistrate said that the grandmother refutes that.
The grandmother's counsel then submitted that the mother has abandoned the child and that a protection order does not need to be made because the grandmother is willing and able to care for the child. The magistrate paraphrased the effect of that submission as being 'almost the same sort of thing as her application for interim placement but forgetting about all the unnecessary steps along the way'.
The magistrate referred to references obtained by the grandmother and her counsel's submission that the grandmother has bonded with the child and is eminently suitable to look after her. The Department's counsel then referred to information received by the Department relating to the grandmother and her children and interactions with a child protection authority in another State, and also more recent matters raised in Broome. It is not necessary to detail those matters, suffice to say it was appropriate that the Department raise and consider them.
Counsel for the Department referred to the fact there was medical evidence about the child relevant to the application that had just been ascertained and was not in evidence.
The magistrate then determined the matter. He was clearly cognisant of issues as to procedural fairness. As to the mother, he said there was a risk that she would not receive natural justice by proceeding as proposed, but if she was deliberately staying out of the way then one can hardly say she is denied natural justice.
As to the father, he said:[5]
As to the father, I balance the fact that, whoever he is, he hasn't got natural justice because he doesn't know. I balance that against the fact that what's [sought] here is a protection order of one year or nothing. And bearing in mind the time it takes to determine paternity and get involved in a case, most of that time will be eaten up in the time a year of protection goes by or nothing. So in a practical sense, he won't be denied natural justice.
[5] ts 13.
He accepted that he changed the nature of the anticipated hearing into a hearing on the papers.
He said the position was no different to if the grandmother's application was heard because, 'all the affidavit evidence points to the fact that the mother is going to give the child to her under a family arrangement'.
The magistrate noted the burden of proof was on the Department in its substantive application and said, 'there's abundant evidence that the child is in need of protection'. He said he had no reason to doubt what the grandmother said about the mother having mental health issues, and that if there was a dispute about being kicked out of the house he would not believe the mother. He referred to two statutory declarations attesting positively to the grandmother's role as a mother that seemed inconsistent with reports received by the Department. He referred to the fact the grandmother was once part of a safety plan for the child. He said, '[s]o the truth, as in many cases, probably lies somewhere in between'.
The magistrate considered reunification with the mother would not succeed, as she 'has got a mental illness which hasn't been cured, if they could ever be cured. It's not going to succeed'.
Finally, the magistrate determined that the Department had not demonstrated that a protection order should be made because with no such order, the child will, in accordance with the mother's parental responsibility, be given to the maternal grandmother. He dismissed the application. When counsel for the Department then raised that its officers do not know where the mother is the magistrate stated again that the application is dismissed.

Grounds of appeal

There are three grounds of appeal:
1.The Learned Magistrate erred in law and in fact in finding that the child had been abandoned.
2.The Learned Magistrate failed to provide procedural fairness and natural justice in that:
a.he denied, in that he did not provide, the Appellant the opportunity to call relevant witnesses and to cross‑examine the Second Respondent;
b.he purported to deal with the substantive Appellant's protection application on the papers in circumstances where there was conflicting evidence, including in the evidence presented by the Second Respondent;
c.he purported to deal with the Appellant's protection application without proper or any notice to the parties.
3.The Learned Magistrate erred in fact and in law in determining that the child was in need of protection but determining that no order was required under section 46 of the Children and Community Services Act 2004.

Ground 2

I will deal firstly with ground 2 as to the denial of natural justice and due process.

Principles with respect to natural justice

The court when exercising its jurisdiction in the Children's Court is required to provide procedural fairness. This is in part because of the serious consequences for a child and parents that follow from the making of a protection order. The principles are collected by Beech J in AC v Chief Executive Officer of the Department for Child Protection and Family Services:[6]
[6] AC v Chief Executive Officer of the Department for Child Protection and Family Services [2015] WASC 477 [21] ‑ [27].
When the court exercises its jurisdiction under s 20(1)(a) of the Children's Court of Western Australia Act 1988 (WA), its practice and procedure is governed by the Magistrates Court (Civil Proceedings) Act 2004 (WA) and rules of court under that Act.
By s 13 of the Magistrates Court (Civil Proceedings) Act, in dealing with cases the court is to ensure they are dealt with justly, which 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.
By s 145 of the CCS Act, protection proceedings are to be conducted with as little formality and legal technicality as the circumstances permit. Further, the 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. The court is not bound by the rules of evidence. The standard of proof is proof on the balance of probabilities. However, given 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.
Section 7 of the CCS Act requires the court to regard the best interests of the child as the paramount consideration.
In Mijatovic v Legal Practitioners Complaints Committee, 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].'
In my view, the profoundly serious consequences for both the child and the parents of the making of a protection order weigh heavily in the questions of whether the rules of natural justice apply, and what natural justice requires in the circumstances of a case. The fact that the application is determined by a court tends strongly in favour of the application of the rules of natural justice.
…
Nothing in the statutory framework applicable to the proceedings expressly or by necessary implication excluded the requirements of procedural fairness. I am satisfied that the magistrate was obliged to afford procedural fairness to all parties, including the child's representative.

Other relevant provisions of the CCS Act that support such a finding include s 153 (court to facilitate party's participation in proceedings) and s 147 (certain classes of persons are to be parties to protection proceedings).
As to the content of the obligation to accord procedural fairness, it will vary according to the circumstances. However, taking into account the serious consequences that may follow, in my view a party on such a protection application should have the opportunity to cross‑examine a witness and so test the relevant evidence. A party should have proper notice of the fact that substantive and determinative orders might be made.[7]

No opportunity to test evidence of grandmother or as to her suitability

[7] See AC v CEO of the Department for Child Protection and Family Services [29]; D v Chief Executive Officer, Department for Child Protection and Family Support [2016] WASC 289 [32] ‑ [33].

The Department points to several difficulties with the manner in which the magistrate approached the issue of natural justice and evidence.
First, the magistrate suggested that an opportunity to provide submissions would suffice. In my view, it did not suffice, particularly in circumstances where the Department had not attended at court on 13 October 2017 expecting to argue its protection application. It did not have notice that would allow it to properly prepare submissions.
Second, the grandmother's interim application had been opposed by the Department on the basis that she was not a 'suitable person' for placement of the child. Whilst the question of suitability does not need to be resolved for the purpose of this appeal, the magistrate clearly accepted the submissions and untested evidence from the grandmother as to her suitability, without requiring or obtaining the report that would ordinarily be required under s 133(2)(c) (although it was able to be given orally that day) and without permitting the Department the opportunity to test the grandmother's evidence including the statutory declarations or present its completed evidence (for example as to the child's health).
It is not to the point that in determining the Department's application no s 133(2)(c) report was required. Such a report was required for the purpose of the grandmother's application and could have been provided by the Department. In that manner the evidence as to suitability could have been tested. The course chosen by the magistrate meant there was no opportunity to test the evidence as to suitability.
The magistrate, having observed that the truth probably lay somewhere in between, acknowledged there was conflicting evidence but then denied the parties the opportunity to explore and test where that truth may lie. The magistrate's observation that cross‑examination would not have changed the facts as he had otherwise found them ignores the purpose of cross‑examination - to explore and test such facts and without pre‑determination.
I accept the Department's submission that denial of that opportunity where there were differences on the evidence, where the basis of the hearing had in any event shifted, and where 'suitability' was a matter directly in issue, comprised a denial of procedural fairness.

Failure to provide notice to the parties prior to determining the substantive application

In D v Chief Executive Officer, Department for Child Protection and Family Support, it was accepted that a failure to advise a party to protection proceedings (the child's mother) that substantive order were liable to be made, and subsequently were made, amounted to a failure to provide procedural fairness. In that case the mother had indicated that she did not intend to further participate in the proceedings on the basis of her mental health. The matter was listed before the dates previously given for the substantive hearing without further notice being given to the mother.
In this case, notice that the substantive hearing was to proceed was given only after the proceeding had commenced on the day and where both parties supported an adjournment of the grandmother's application. Counsel for the Department expressly raised the difficulties of proceeding with its substantive application on that day. In a matter of such importance as child protection, the Department should have been accorded the opportunity to properly prepare and take all necessary instructions that notice would have provided. In my view, procedural fairness was denied to the Department.
Whilst that is sufficient to dispose of the leave application and the appeal, I note that the mother had no notice of the hearing of the substantive application. Mr Athanasiou raised that issue. With respect, the magistrate ought to have given the mother's position more careful consideration, particularly in light of the principals discussed in D v Chief Executive Officer, Department for Child Protection and Family Support. There was no medical evidence to the effect that she had an incurable mental illness such that she was not able to be reunified with the child. That too is an important matter from the perspective of the child.
The father, whilst not at that time formally established as the father, was still known to the parties. He was subject to an order from the court as to parentage testing. He should have had a reasonable opportunity to participate. There is no evidence of any urgency in the application such that the hearing could not have awaited the results of the testing, or such that inquiries could not be made to ascertain the wait period for any results. As it happens, the father has expressed a desire to be heard on any rehearing of the Department's application.

The grandmother's submissions

I should add that I have considered and taken into account the grandmother's submissions in opposition to the appeal.
As to ground 2, the grandmother does not contend that procedural fairness was accorded the parties: rather, the submission is to the effect that there was no 'practical injustice'.[8]
[8] Referring to that expression as used in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].
The Department accepts that it is uncontroversial that even if there is a lack of procedural fairness, then relief might be denied if it is established that a properly conducted hearing could not possibly have produced a different result.[9]
[9] SL v Chief Executive Officer of the Department for Child Protection and Family Support [2017] WASC 293 [29].
In particular, in support of her submission the grandmother said that the Department could have prepared its case on suitability and organised a s 133 report prior to 13 October 2017 but chose not to do so. That may all be so, but the grandmother's application was not in any event formally determined. More to the point, that the Department could have prepared such a report or put on further evidence does not alter the fact that it is highly likely that the Department would have sought to cross‑examine the grandmother and potentially other witnesses. It does not change the fact that the Department offered to have a report presented orally on the day but no report was presented. It cannot be said that the result would have been the same had the Department been provided with prior notice that the application was to be determined that day. Clearly there was other evidence (for example the medical evidence) that it wished to adduce.
It is also submitted by the grandmother that the conflicting evidence was not so much conflicting as able to be seen in different lights. However described, in my view the Department ought to have had the opportunity to test such differences in evidence - and differences were acknowledged by the magistrate - particularly where (as here) it relates to a matter as critical as the care of a very young child. The grandmother contended that courts would buckle if cross‑examination was required with respect to character references. However, it is always a matter of degree and context. Ordinarily, the suitability of the grandmother would be assessed where, as here, it was put in issue. That is not a mere weighing of a character reference. It is a far more substantive matter.
As to the position of the first respondent, the grandmother contended she had made it clear she wished her to be placed under the care of the grandmother and had effectively abandoned the child. For the reasons above, I do not consider this means the mother is not to be notified of the hearing date of a substantive hearing.
There is also some doubt as to the so‑called abandonment issue. As I have determined the appeal should be allowed on ground 2, it is not necessary to determine grounds 1 and 3. However, I note the evidence as to the mother's intentions as to the future care of the child were arguably more equivocal than evidencing 'abandonment'. For example:
(a)an extract of an electronic message between the mother and the grandmother via 'Facebook' (on or before 24 May 2017) indicates they discussed the child being with the grandmother and then joined by the mother once she (the mother) was 'better';[10]
(b)there was evidence from the grandmother that the mother intends to return to the child in Broome when she is 'ready';[11]
(c)there was evidence from the grandmother that on occasions between the period when the mother moved to Perth and the child was taken into the Department's provisional care, the mother told the grandmother that 'she wanted the child to stay with the [grandmother] in Broome while she lived her own life and got her personal issues under proper management'.[12]
[10] Affidavit of grandmother, 24 May 2017, annexure B (appellant's appeal bundle, tab 4).
[11] Affidavit of grandmother, 28 September 2017, [7(v)] (appellant's appeal bundle, tab 7).
[12] Affidavit of grandmother, 28 September 2017, [3(ix)], see also [8(v)] (appellant's appeal bundle, tab 7).
I also note that whilst not a defined term, in s 28(2) of the CCS Act, 'abandonment' as indicating a need for protection refers to abandonment by both parents. It is by no means clear that the child was abandoned by both parents, if that is the context in which the learned magistrate used that term. But the issue of abandonment need not be determined for present purposes.
Finally, as to the position of the father, the grandmother submits that the Children's Court had previously said the parentage testing should not hold up proceedings. However, regardless, this is not a case where there was a notion that at some point in the future parentage results might be obtained from a third party. The third respondent was identified as the potential father and was participating in the testing. He was and could be contacted. A likely date for results could have been ascertained. As already noted, the father participated willingly in the appeal hearing.

Grounds 1 and 3

As I have determined to grant leave with respect to ground 2 it is not necessary to determine the leave application and appeal with respect to grounds 1 and 3. I note, however, as discussed above, some overlap in those grounds.

Determination

Leave to appeal on ground 2 is granted and the appeal is allowed. I make orders as follows:
1.The Department has leave to appeal from the decision of the Children's Court made 13 October 2017.
2.The appeal is allowed.
3.The appellant's application for a protection order is remitted to the Children's Court before a different magistrate.
I will hear the parties as to any further orders.