Child And Adolescent Health Service and Chief Executive Officer Of Department Of Communities & Ors

[2025] FCWA 174

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CHILD AND ADOLESCENT HEALTH SERVICE and CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES & ORS [2025] FCWA 174

CORAM: O'BRIEN J

HEARD: 28 JULY 2025

DELIVERED : Ex tempore

FILE NO/S: 5876 of 2025

BETWEEN: CHILD AND ADOLESCENT HEALTH SERVICE

Applicant

AND

CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES & ORS

First Respondent

AND

MR EDWARDS

Second Respondent

AND

MS TORRES

Third Respondent

Catchwords:

CHILD WELFARE JURISDICTION – Where the child has been diagnosed with [redacted] leukaemia and has been taken into provisional protection and care – Where orders are sought to secure the provision of treatment in circumstances where the medical evidence is that without such treatment the child will likely succumb to the disease and die within a few weeks – Where the child's father is opposed to the proposed treatment and has taken active steps to prevent it - Where the father describes the child as the "property" of the parents – Orders made to secure the ongoing hospitalisation and treatment of the child until further order.

Legislation:

Children and Community Services Act 2004 (WA)
Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms Buller
First Respondent	:	Ms Abbott
Second Respondent	:	In Person
Third Respondent	:	No Appearance
Independent Children's Lawyer	:	Ms Smith

Solicitors:

Applicant	:	State Solicitor's Office
First Respondent	:	Department of Communities
Second Respondent	:	Self-Represented Litigant
Third Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Legal Aid Western Australia - Family Law Division

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

Norton & Landle (Suppression and non-publication orders) [2015] FamCA 125

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Child and Adolescent Health Service and Chief Executive Officer of Department of Communities & Ors has been approved by the Family Court of Western Australia pursuant to s 236B(2) of the Family Court Act 1997 (WA).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part 11A of the Family Court Act 1997 (WA) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1[Child A], who was born in [2012], is the son of [Mr Edwards] ("the father") and [Ms Torres] ("the mother").[1]

[1] During this hearing the father indicated that both his name and Child A’s are spelled differently to what is contained in the documents filed [redacted]. No birth certificate for Child A is presently filed. I adopt the spelling used in the documents filed and orders made to date both in this Court and in the Children’s Court, and mean no disrespect to the father in doing so.

2Child A has been diagnosed with [redacted] Leukaemia. Concerns arose as to his access to treatment, and in [July 2025], he was taken into provisional protection and care by a relevant officer pursuant to s 37 of the Children and Community Services Act 2004 ("the Act"). That section of the Act permits a child to be taken into provisional protection and care if the relevant officer suspects on reasonable grounds that there is an immediate and substantial risk to the child’s well-being.

3By that process, Child A was placed in the provisional care of the Chief Executive Officer of the Department of Communities ("the Department"). Subject to any interim order, the CEO of the Department thereby had responsibility for Child A’s day-to-day care, welfare and development to the exclusion of any other person. That responsibility included responsibility for making decisions about any medical or dental examination, treatment or procedure for Child A.[2]

[2] Children and Community Services Act 2004 (WA) s 29.

4Section 38 of the Act sets out the duties of the CEO of the Department when a child, like Child A, who was not previously in care is taken into provisional protection and care pursuant to s 37. If the CEO decides not to make a protection application or other relevant application under the Act, then the child must be returned to the care of a parent or other person who is providing day-to-day care as soon as practicable. If the CEO decides to make a protection application or other relevant application under the Act, that must be done as soon as practicable and, in any event, not more than two working days after the child is taken into provisional protection and care.

5The CEO made a protection application promptly in [July 2025]. That application was listed for an initial hearing in the Children's Court of Western Australia [two days later] ("first Children’s Court hearing").

6In [July 2025], Child A was transported urgently to [Hospital A]. He was reviewed by the on-call consultant paediatric oncologist [Dr A]. He presented as profoundly pancytopenic. In layman's terms, leukaemia cells were significantly present in his bone marrow, such that haemoglobin and neutrophils which protect the body including from infection were not being produced to adequate levels, and he was at extreme risk. With the consent of the CEO, Child A undertook diagnostic procedures which confirmed that leukaemia cells were present in his spinal fluid.

7The presence of leukaemia cells in Child A’s spinal fluid meant that standard treatment by way of intravenous chemotherapy necessarily had to be supplemented with the administration of chemotherapy via lumbar puncture. That is so, as the standard administration of intravenous chemotherapy via a Double Lumen Broviac does not reach the spinal fluid.

8While the CEO had the necessary statutory authority to consent to immediate treatment required by Child A, the Child and Adolescent Health Service considered it prudent to commence proceedings in this court on an urgent basis, prior to the first hearing date in the Children's Court. An application was filed in [July 2025], naming the CEO as the First Respondent, and Child A’s parents as the Second and Third Respondents respectively.

The first Family Court hearing

9The application was heard urgently after hours by the Chief Judge, who took oral evidence from Dr A and received Dr A’s letter of report of the same date into evidence. Her Honour acknowledged that the hearing was proceeding on an ex parte basis, as Child A’s parents had not been served with it nor had an opportunity to be heard. That said, her Honour was informed that Child A’s mother would consent to the proposed treatment, but that Child A’s father likely opposed it.

10Having considered the report of Dr A and heard [redacted] the evidence, the Chief Judge was satisfied that it was appropriate to make orders relating to Child A’s welfare pursuant to s 162 of the Family Court Act 1997 (WA)[3] to ensure that Child A received the treatment he needed urgently and continued to receive it. The treatment involves an initial cycle of multiagent chemotherapy and requires Child A to remain in hospital as an inpatient for supportive care. It is anticipated that he will need to remain in hospital for four to six weeks at this stage. His response to the first cycle of chemotherapy will indicate what treatment will then need to proceed; in some cases, a bone marrow transplant can be required. Most children who do not require a transplant proceed with a further three cycles of inpatient multiagent chemotherapy. Each such cycle involves 4 to 6 weeks in hospital as an inpatient because of the level of supportive care required.

[3] [redacted] During this hearing, the father indicated that he and the mother were not legally married, albeit they had a ceremony attended by friends and regard themselves as married. The relevant provisions of the Family Court Act and the Family Law Act are identical in any event.

11That supportive care includes the need for isolation within the hospital with specific provisions made to protect from exposure to possible infection, pain management, nutritional support, intravenous antifungal treatment and antibiotics, blood product support and potentially admission into intensive care.

12The evidence of Dr A, which the Chief Judge accepted, was that Child A’s need for treatment amounted to an emergency, and that without such treatment he would likely succumb to the disease and die within a few weeks.

13The Chief Judge accordingly made orders to secure that treatment for Child A, and enabling the clinical staff at Hospital A to make necessary treatment decisions. Her Honour also ordered that Child A remain at Hospital A until discharged with the consent of the clinical staff unless otherwise directed by those clinical staff. Her Honour otherwise made procedural orders, and orders for the application made by the hospital and supported by the CEO of the Department to be served on Child A’s parents. The application was otherwise adjourned to this afternoon for further hearing. Both parents were served [two days after] the hearing before the Chief Judge.

The proceedings in the Children’s Court

14[Redacted] At the first Children’s Court hearing at which the protection application came on, an interim order was made pursuant to s 133(2)(b) of the Act for Child A to remain in the provisional protection and care of the Department. A further order was made, for the avoidance of doubt, confirming that the Department may consent to medical treatment for Child A, and that where that treatment relates to his leukaemia diagnosis it is to be consistent with any medical treatment directed pursuant to the orders made by the Chief Judge [redacted] at the first Family Court hearing.

15The first Children’s Court hearing was otherwise adjourned to [six days later] for mention, with the record noting that the Department is to advise the Children's Court as to whether it intends to pursue the protection application in that court, in light of the orders already made by the Chief Judge.

16Thus, as matters presently stand:

(a)Child A is under the provisional protection and care of the Department, and the CEO has the responsibility for making decisions regarding his day-to-day care, welfare and development, including as to medical treatment or procedures, to the exclusion of any other person;

(b)interim orders have nevertheless been made in this court, with the consent of the CEO, to facilitate Child A’s continuing treatment as directed by the clinical staff at Hospital A, and the continuation of his admission there as an inpatient until discharged with the consent of those clinical staff;

(c)mirror orders have been made in the Children's Court to the same effect;

(d)Child A’s parents have not yet been heard by the Court other than to the extent that the father made submissions today;

(e)the learned Magistrate in the Children's Court has made clear his expectation that the Department will consider whether to proceed with its protection application in that court, in circumstances where orders have been made on the application of Child and Adolescent Health Services in this court; and

(f)the CEO has confirmed that the Department consents to a continuation of the orders made by the Chief Judge on the application of the Child and Adolescent Health Service at the first Family Court hearing and to the further orders sought today, that consent being required by s 202(1) of the Family Court Act 1997 (WA).

The hearing this afternoon

17The father attended the hearing this afternoon. He stated that his position was that Child A is his "property" and the "property" of his mother, and has been "kidnapped" by the State. He resisted the proposition that Child A is a child, saying rather that he is a boy. He said that he attended the hearing in order to retrieve him.

18The father stated further that he charges for his time at a rate of $200 per hour, and that he would propose to render a bill to me should I make any order directed to him. He made other submissions consistent with the approach taken by persons who describe themselves as sovereign citizens. Those submissions do not require further recital.

19I stood the matter down to ensure that the father had available to him copies of all relevant documents, so that he could make any further submissions he wished to make. Those documents were:

(a)the application filed by the Child and Adolescent Health Service in July 2025;

(b)the orders made by the Chief Judge that day;

(c)the orders made by the Children's Court at the first Children’s Court hearing, the father having confirmed to me that he did not attend that hearing;

(d)the letter sent to the Court today by the CEO confirming that the Department consents to a continuation of the orders made by the Chief Judge;

(e)a Minute of Orders now proposed by the Child and Adolescent Health Service. That Minute seeks the continuation of the orders made by the Chief Judge until further order, and injunctions restraining the father from interfering with or obstructing the provision of medical treatment or care to Child A by staff at Hospital A, and from removing or attempting to remove Child A from Hospital A other than with the prior written consent of the Child and Adolescent Health Service, or an order of the Court. A further injunction is sought compelling the father to comply with any reasonable directions made by Hospital A staff; and

(f)the affidavit sworn today by [Dr B], a consultant paediatrician and Senior worker at the relevant Unit at Hospital A.

20That affidavit had annexed to it notes taken by hospital staff over the last several days. In short, the hospital staff report that the father removed Child A’s intravenous line through which chemotherapy was being administered, apparently having cut it, and taped the end of the intravenous line into a urine bottle. The treatment fluids which should have been entering Child A’s system were instead being discharged into that urine bottle.

21The hospital notes record that the father has stated that he does not consent to chemotherapy for Child A, and that he videoed staff despite them making clear that they did not consent to that. He is recorded as having written signs saying "I do not consent to any man or woman touching my body", apparently with a view to Child A signing that document. Child A is recorded as having also referred to himself as having been kidnapped.

22At the request of hospital staff, police interacted with the father and at their request he left the hospital room. He was advised by police not to return to the hospital for the remainder of the relevant day and night, failing which he would be considered to be trespassing, but it does not appear that a formal move on notice was issued.

23It is on that basis that the Child and Adolescent Health Service seeks injunctions restraining the father from interfering in Child A’s treatment and from removing him from Hospital A.

24In his further submissions this afternoon the father did not dispute the account given by the hospital. He otherwise confirmed his position as earlier summarised in these reasons.

Disposition

25The medical evidence clearly supports the steps taken by the hospital to date. The evidence given by Dr A before the Chief Judge at the first Family Court hearing, which I have reviewed, was clear and compelling. Critically, that evidence made it clear that any delay in administering the appropriate treatment to Child A would place him at grave risk. It is on that basis that the Department took its initial action, that the Chief Judge made her orders, and that the Children’s Court made its confirmatory orders at the first Children’s Court hearing.

26The father is entitled to his beliefs. He is entitled to advance them in this court and in the Children's Court, and he will be given the opportunity to do so. That said, it is clearly appropriate for Child A’s treatment to continue without interference unless and until the father persuades this court to set aside the orders already made facilitating that treatment, or the proceedings in this court are discontinued and appropriate orders are made in the Children’s Court.

27The injunctions sought today do not prevent the father from spending time with Child A in hospital, at least at this stage. They seek only to ensure that in doing so, he does not interfere with Child A’s treatment or therapy in any way, that he does not seek to remove Child A from hospital, and that he complies with directions made by hospital staff.

28That said, the father must understand that if he does not comply with the orders to be made today, and if he seeks to interfere in any way with Child A’s treatment other than as permitted by an order of this or the Children’s Court, then the Child and Adolescent Health Service may consider that it has no option but to take legal steps to prevent him from attending at the hospital premises at all. At a time when Child A clearly needs the support of his parents, it is to be hoped that the father will not act in a way that puts the Service in that position.

29There will be orders until further order in terms of the Minute filed today.

30The parties, which of course includes both parents whether individually or together, are at liberty to seek a relisting to vary or set aside the orders already made at short notice. I record that I have explained to the father that if he or the mother seek to take that course, they will need to file a Response to the application already brought by the Child and Adolescent Health Service, setting out clearly the orders they seek, and an affidavit in support setting out the evidence upon which they rely.

31I record further that the Independent Children's Lawyer sought a broad suppression and non-publication order pursuant to s 219AR of the Family Court Act 1997. I was not satisfied that the order in the broad terms sought should be made on the evidence presently available, bearing in mind the well‑established principles that:

(a)Safeguarding the public interest in open justice is a primary objective required to be taken into account in considering making any such order;

(b)The grounds upon which a Court may make an order are restricted only to those within the four sub‑paragraphs of s 219AS(1), and in all cases the order must be "necessary" to achieve the particular purpose; and

(c)The suppression or non-publication order itself must specify the ground or grounds upon which it is made.[4]

[4] Norton & Landle(Suppression and Non-Publication Orders) [2015] FamCA 125.

Orders

Noting the consent of the CEO, Department of Communities to these orders

Until further order of the Court

1.For the avoidance of doubt, the orders made by the Honourable Justice Sutherland at the first Family Court hearing in the proceedings remain in place.

2.On a without admission as to need basis, the Second Respondent father, [redacted], be restrained by injunction and an injunction is hereby granted restraining him from:

(a)Interfering with or obstructing the provision of medical treatment or care to the child, [Child A], born in 2012, by staff at [Hospital A]; and

(b)Removing or attempting to remove said child from [Hospital A] save with the prior written consent of the Applicant or order of the Court.

3.The Second Respondent must comply with any reasonable directions made by [Hospital A] staff.

4.The parties, any other interested person, any media, and any person having knowledge of the proceedings be and are restrained by injunction from publishing or permitting to be published any account of the proceedings, including reference to any evidence or submission made in the proceeding, in any manner that would identify the child, [Child A], born in 2012, the subject of the proceedings, either parent, any other party to the proceedings, any witness, or any person providing treatment to the child.

5.The oral application of the Independent Children’s Lawyer for a suppression order is otherwise dismissed.

6.Any documents required to be served on the parents or either of them may be served on them by email to [redacted].

7.Personal service of the orders made today on the Second Respondent father prior to enforcement is dispensed with.

8.The parties are at liberty to seek a relisting to vary or set aside these orders, and the orders made on the first Family Court hearing, at short notice.

9.The said proceedings are otherwise adjourned generally.

These reasons are the reasons for decision delivered on 28 July 2025, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

29 JULY 2025