D v Chief Executive Officer, Department for Child Protection and Family Support - [2016] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: D -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2016] WASC 289

CORAM: CORBOY J

HEARD: 22 DECEMBER 2015, 3 & 19 FEBRUARY 2016 , 8 APRIL & 27 MAY 2016

DELIVERED : 14 SEPTEMBER 2016

FILE NO/S: SJA 1075 of 2015

BETWEEN: D
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE A E HORRIGAN
File No  :PC 28 of 2014

Catchwords:

Appeal - Children and Community Services Act 2004 (WA) - Child in provisional protection and care - Whether the Children's Court had jurisdiction over a protection application commenced more than 2 days after child taken into provisional care - Appellant denied natural justice - Whether the protection application should be remitted to the Children's Court to be heard and determined

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA), pt 2
Interpretation Act 1984 (WA), s 56(2)

Result:

Leave to amend appeal notice allowed
Leave to appeal on grounds relating to natural justice and s 38 Children and Community Services Act 2004 (WA) allowed
Leave to appeal on other grounds refused
Appeal allowed on ground that the appellant was denied natural justice
Protection application remitted to the Children's Court

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms N Eagling

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200
PM v The Queen [2007] HCA 49; (2007) 232 CLR 370
Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386
CORBOY J:

The background to the appeal

The appellant is the mother of RSD. RSD was born on 26 December 2013. On 2 January 2014, RSD was taken into provisional protection and care pursuant to s 37 of the Children and Community Services Act 2004 (WA) (the CCS Act).
Section 38 of the CCS Act provides for what is to happen immediately after a child has been taken into provisional protection and care pursuant to s 37. The section requires the respondent (the CEO) to decide whether to make a protection application or other application under pt 4 of the Act. The CEO must make any application as soon practicable, but in any event not more than two working days after the child has been taken into provisional protection and care: s 38(4).
An application for protection orders in respect of RSD was filed in the Children's Court on 13 January 2014 (the Application). The Application sought interim and final orders - that RSD remain in provisional protection and care pursuant to s 133(2)(b) of the CCS Act and that a protection order (time‑limited) be made for a period of two years. Self‑evidently, the Application was filed outside the time prescribed by s 38(4).
The Application was listed for hearing on 16 January 2014. Interim orders were made at the hearing: first, that until further order of the court, RSD was to remain in provisional protection and care; second, that arrangements were to be made for contact between the appellant and RSD no less than three times per week (the Interim Order). The Interim Order was varied in March and December 2014.
The Application was mentioned on numerous occasions in 2014 and early - mid 2015. The Application was listed for trial at a directions hearing held in March 2015. It was listed for 10 days commencing on 16 November 2015. In May 2015, the CEO amended the Application to seek revocation of the interim contact order and a final order in the form of a protection (until 18) order.
Pre‑hearing conferences were held in November and December 2014 and February 2015. A further pre‑hearing conference was to have been held in May 2015 but was cancelled due to the appellant's refusal to attend. The appellant also refused to attend a pre‑hearing conference in August 2015. She wrote to the Children's Court at about the same time stating that she would not attend any further hearings, including the trial of the Application, due to the adverse effect that the proceedings had on her emotional and mental well‑being (email dated 11 August 2015).
The Application was listed for mention in the Children's Court on 1 September 2015. The appellant did not attend the mention. The presiding magistrate proceeded ex parte to find that RSD was in need of protection pursuant to s 28(2)(c)(iv) and (c)(v) of the CCS Act. Her Honour made a final order on the Application that the CEO should have parental responsibility for RSD until the child reached 18 years of age (the Protection Order).

The appeal and the issues to be determined

The appellant appealed against the Protection Order. The respondent conceded that the appellant had been denied natural justice when the Children's Court made the Protection Order in her absence and without notice to her that such an order might be made if she did not attend the mention. That concession was rightly made.
Ordinarily, the effect of finding that the appellant had been denied natural justice would be to order that the Application be remitted to the Children's Court to be determined according to law. However, the appellant opposed the matter being remitted on various grounds. Those grounds included that the Children's Court lacked jurisdiction to hear and determine the Application as it had been commenced after the time prescribed by s 38(4) of the CCS Act; alternatively, that this court should exercise a discretion not to remit the matter and rather, should order that RSD be released from the care of the CEO and placed in the care of the appellant. Further, the appellant amended her appeal to allege that the Children's Court did not have jurisdiction to make the Interim Order because of the CEO's failure to comply with the requirements of s 38(4). Accordingly, it is necessary to consider the effect of the CEO's failure to have commenced the application within two working days of RSD being taken into provisional protection and care notwithstanding the CEO's concession.
The appeal notice did not refer to the CEO's failure to comply with the requirements of s 38(4) of the CCS Act or to the fact that the Protection Order had been made in the appellant's absence. Rather, the notice contained the following proposed grounds of appeal:
1.The magistrate arrived at a decision without proper evidence to support it.
2.The magistrate wrongfully stopped evidence [being] given and stopped further hearing and stopped further affidavits from being heard and lodged at the Children's Court of WA.
3.Magistrate didn't want to see or hear my third and fourth affidavits and people behind the desk at court wouldn't accept my evidence and affidavits.
4.Fresh evidence has become available.
However, the appellant made an affidavit in support of her appeal in which she raised the CEO's failure to have commenced protection proceedings within the time specified by s 38(4) (affidavit dated 24 September 2015, pars 8 and 9) and the fact that the Protection Order was made when she was not present in court (par 12 under the heading 'History'). It should also be noted that the grounds of appeal reproduced above, if made out, could only result in the matter being remitted to the Children's Court to be determined in a substantive hearing of the Application.
The appellant subsequently applied to amend her appeal notice to appeal from the Interim Order. The minute of proposed amended appeal notice was undated but was served on the CEO in late January 2016 and was the subject of directions made at a hearing conducted on 8 April 2016.
The minute of proposed amended appeal notice contained new proposed grounds of appeal:
1B.Magistrate Horrigan erred in law, making the protection order on 1st Sep 2014. I was not advised about this was about 18y order and based on not factual information. Her statement and decision was ambiguous and I was not present.
2.Denial of natural justice and not given the due process in whole proceedings and whole proceedings were ambiguous and wrong.
3.Interim order is invalid was not impeached to the two days in the Act.
It will be noted that par 1B of the proposed amended appeal notice, and probably par 2, related to the making of the Protection Order rather than to the Interim Order. Accordingly, it was not entirely clear from the minute of proposed amended appeal notice whether those grounds of appeal were in substitution for, or in addition to, the grounds alleged in the appeal notice as originally filed and served. I will refer to ground 1B and that part of ground 2 of the amended notice that alleges a denial of natural justice as the 'natural justice grounds' and ground 3 as the 's 38 ground'.
The CEO opposed the appellant being granted leave to amend her notice of appeal on the grounds that the amendment was sought more than two years after the order had been made and the amendment did not concern the Protection Order, which was the subject of the appeal, so that the substantive effect of the proposed amendment was not to vary the proposed grounds of appeal but to institute a fresh appeal. However, the appellant acted in person in commencing and prosecuting her appeal. She raised the issue of jurisdiction in her affidavit that accompanied the appeal notice; the question concerns the court's power to have entertained the Application and accordingly, to have made the Protection Order and the Interim Order and in any event, the issue of jurisdiction cannot be ignored. Consequently, I have considered whether the Children's Court lacked jurisdiction to hear and determine the Application and to make the Interim Orders because of the failure of the CEO to have commenced protection proceedings within the time specified in s 38(4) of the CCS Act.
I have also decided to ignore any possible ambiguity in the appellant's appeal notices. Accordingly, I have considered the grounds of appeal proposed in the appeal notice as initially filed and in the amended notice.
I have concluded that the Children's Court possessed jurisdiction to hear and determine the Application and to make interim orders in the Application. I have further concluded that:
(a)the appellant should be given leave to amend her appeal notice;
(b)the amended appeal notice should be read as proposing additional grounds of appeal and as incorporating an appeal from the Interim Order and the Protection Order;
(c)the appellant should be given leave to appeal from the Protection Order on the natural justice grounds (leave will not be granted to that part of proposed ground 2 of the amended appeal notice that alleges that the appellant was not given 'the due process in whole proceedings' and that 'whole proceedings were ambiguous and wrong') and on the s 38 ground;
(d)the appellant should not be given leave to appeal on any other proposed ground of appeal;
(e)the appeal should be allowed on the natural justice grounds;
(f)the Protection Order should be set aside and the Application should be remitted to the Children's Court for a substantive hearing.
It would be open to the appellant in the Application to make any application to the Children's Court for an interim order under s 133 of the CCS Act that she considers appropriate.

The appellant's supporting affidavits

The affidavit made by the appellant in support of her appeal contained numerous allegations concerning the circumstances in which RSD had been taken into provisional protection and care (including that the CEO had acted on 'defamatory allegations and a falsified medical report'). The appellant further alleged that she had been abused and intimidated by the staff of the Department for Child Protection and Family Support (the Department); that medical opinions and other reports supported the return of RSD to the care of the appellant; that RSD had not been properly cared for while in the care of the CEO and that the appellant's circumstances were such that she could provide appropriate and loving care for her child.
The appellant made a further affidavit which was expressed to be 'in support of [RSD] being placed into the sole care and protection of myself' (affidavit made 1 October 2015, par 2). A number of documents were annexed - contact reports; correspondence between the appellant and the Department; documents concerning a reunification programme for the appellant and RSD; a reference from a psychiatrist and a document prepared by the appellant recording information about herself and her dealings with the Department. The affidavit and the annexed documents also contained numerous allegations concerning the Department's staff and the treatment of RSD.
The appellant made a third affidavit on 15 October 2015. The affidavit concerned an incident that had occurred two days previously which the appellant alleged demonstrated that RSD had been injured as a result of being inappropriately cared for by her carers.

The appellant's further affidavit and accompanying documents

Directions were made requiring the appellant to file a copy of any affidavit that she alleged she had attempted to file in the Children's Court but which had been rejected (grounds 2 and 3 of the appeal notice). The appellant was also directed to file and serve:
(a)an affidavit setting out the source and nature of the fresh evidence that she sought to have accepted in the appeal;
(b)a document identifying the documents annexed to the affidavits that she had already filed in the appeal which she contended constituted fresh evidence;
(c)a document listing errors that she alleged were contained in the transcript of the proceedings in the Children's Court.
The appellant filed the following documents subsequent to those directions:
(a)A document headed 'Affidavit of 3rd/07/2015' which had not been sworn or affirmed by the appellant but which was identified as being the affidavit that the appellant had attempted to file in the Children's Court on 3 July 2015.
(b)A document that was sworn by the appellant before a justice of the peace on 22 January 2016 and which was headed 'Affidavit - Reasons for 18 Year order non‑appearance'. The form of the document did not comply with the requirements of O 37 of the Rules of the Supreme Court1971 (WA) (the Non‑appearance Statement).
(c)A document that was also sworn by the appellant before a justice of the peace on 22 January 2016 and which was headed 'Affidavit regarding 18 Year order' with annexures marked 'A' – 'S'. Again, the form of the document did not comply with O 37 (the Order Statement).
(d)A document that, in effect, identified the Order Statement, including all of the annexures to that statement, as containing fresh evidence.
(e)A bundle of documents signed by the appellant and a justice of the peace and which comprised a copy of the document headed 'Affidavit of 3rd/07/2015'; a document headed 'Affidavit what happened when 3^rd July affidavit was sought to be lodged with the Children's Court'; a document entitled 'Document with the errors on the 3^rd July Transcript 11.08 am'; a document entitled 'List of fresh evidence of affidavit filed at Supreme Court on the 24th September 2015'; and a document entitled 'Affidavit source and nature of evidence why wasn't provided to magistrate'.
(f)A bundle of documents described as 'extra documentation' and which comprised a copy of the CEO's written proposal for RSD pursuant to s 143 of the CCS Act and marked 'draft'; a document entitled '18 year order errors'; a copy of an application made by the appellant in the Children's Court and filed on 8 September 2014; the transcript of a hearing in the Children's Court held on 3 July 2015 and a copy of an email to the appellant from the Hon Peter Abetz MLA.
(g)A bundle of documents which comprised a document headed 'Affidavit in relation to errors 3 July 2015 transcript' and annexures; a document that was sworn to by the appellant before a justice of the peace on 21 January 2016, which was headed 'Affidavit relating to lodgement of affidavit 3 July 2015 - Children's Court Perth' but which did not comply with the requirements of O 37; a further document that was sworn to by the appellant before a justice of the peace on 21 January 2016, which also does not comply with the requirements of O 37 and which was headed 'Affidavit regarding source, nature fresh evidence and why it was not able to be provided to the magistrate' and annexures to that document.
The appellant stated in the Non-appearance Statement that she had not been notified of the hearing on 1 September 2015. She also stated that she had made an application under the Freedom of Information Act 1992 (WA) for records of her contact visits with RSD. She asserted that the contact reports demonstrated that she had a good relationship with RSD and that she had appropriate parenting skills.
The appellant made statements in the Order Statement about her relationship with RSD's father and the steps that she had taken to prepare herself for being a parent. She alleged that material filed by the CEO in the Children's Court contained false allegations about her mental health and her capacity to care for her child. She also responded in the statement to matters that had been raised by the Department and to various reports that had been received in the period after RSD had been taken into the CEO's protection and care.
The CEO did not take any point regarding the form of the various statements made by the appellant. That was appropriate as the appellant acted in person. Accordingly, I have considered the statements and documents filed by the appellant to the extent that they contain material that was relevant to the appeal. I have disregarded any defect in the form of the statements.
A number of the matters to which the appellant referred in her various statements and accompanying documents would be relevant to the determination of the Application and to any application that she might have made to the Children's Court. However, those matters have not been the subject of any finding by the Children's Court and accordingly, they could not, in themselves, form the basis of proposed grounds of appeal having regard to the provisions of s 8(1) of the Criminal Appeals Act 2004 (WA) (the CA Act). They are not matters on which any findings can be made without a substantive hearing.

This court's jurisdiction

The appellant's strongly expressed position was that this court should make orders returning RSD to her care on the basis of the allegations contained in her affidavits and that, to the extent that a substantive hearing was required, the hearing should be conducted by this court. However, this court only possesses appellate jurisdiction in respect of applications made under the CCS Act. The court's jurisdiction is governed the CA Act.
The provisions relating to protection orders are contained in pt 4 of the CCS Act. Part 5 of the Act prescribes the procedure to be followed in dealing with applications for protection orders and related matters. Section 41 and 42 of the Children's Court of Western Australia Act 1988 (WA) (Children's Court Act) provide for an appeal from a finding, order or decision made by a magistrate under pt 4 and pt 5 of the CCS Act.
An appeal is to be made in accordance with pt 2 of the CA Act as if it was from a decision made by a court of summary jurisdiction: s 42 of the Children's Court Act. Part 2 of the CA Act is not especially well suited to appeals from orders made under the CCS Act. However, s 8(1) of the CA Act provides that an appeal may be made on several grounds, including that the court made an error of law or fact; that the court acted without or in excess of jurisdiction; or that a miscarriage of justice has occurred.

Section 14 of the CA Act confers power on this court to make various orders to dispose of an appeal. Those orders include setting aside or varying the decision of the court of summary jurisdiction; substituting a decision that should have been made by the court; remitting the case to be dealt with again by the court, with or without orders as to how or by whom the court is to be constituted or as to how the court must deal with the case; and making any other order that this court thinks fit. The power conferred by each of those alternatives is not unfettered; the powers are to be exercised judicially in the court's appellate jurisdiction.

The appellant's concession

The question of whether the appellant had been denied natural justice was considered at direction hearings held on 3 and 22 February 2016. The CEO conceded in written submissions dated 16 February 2016 that the appellant had been denied natural justice when the Children's Court made the Protection Order ex parte in circumstances where the appellant had not been given notice that the order might be sought if she did not attend the mention hearing.
As has already been stated, the CEO's concession was appropriate. That is especially so given the nature of the Protection Order and the relevant provisions of the CCS Act (the statutory scheme is further considered later in these reasons). A failure to accord natural justice is an error of law within the meaning and for the purpose of s 8(1) of the CA Act. The failure may also constitute a miscarriage of justice.
The effect of the concession made by the CEO was considered at the directions hearing held on 22 February 2016. The appellant opposed an order being made that the matter be remitted to the Children's Court and accordingly, directions were made enabling the parties to make further submissions on what orders should be made in light of the CEO's concession.
The appellant's amended appeal notice raised the question of the jurisdiction of the Children’s Court to make the Interim Order given that the Application was commenced more than two working days after RSD was taken into provisional protection and care (the s 38 ground). Obviously, that question is also relevant to what orders should be made following the CEO's concession.

The CEO's failure to comply with s 38(4) of the CCS Act

JT v Chief Executive Officer

Similar issues were considered by Commissioner Sleight in JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200. In that case, the CEO had commenced protection proceedings outside the time specified by s 38(4) of the CCS Act. The appellant, who was the mother of the child, applied for an interim order for the child to be returned to her care. The application was made in the proceedings commenced by the CEO. It was refused and the mother appealed.
Sleight C identified two issues that arose from the CEO's failure to have made an application within the time specified by s 38(4). First, were the proceedings 'invalidated' by the CEO's non‑compliance? Second, if the proceedings were 'valid', was the CEO nevertheless required to release the child from his provisional protection and care? The second issue may be stated with more particularity: was the CEO bound to have returned the child to her mother at the expiry of the two day period stipulated by s 38(4) and if so, what were the consequences of his failure if the Children's Court had jurisdiction in the protection proceedings?
As to the first of those issues, his Honour found that the requirement to commence an application within two working days of a child being taken into provisional protection and care was obligatory but that the subsequent proceedings were not invalid as a consequence of the CEO's failure to comply with that obligation; that is, the Children's Court had jurisdiction over the application for a protection order. His Honour rejected a submission that the word 'must' should not be interpreted as compelling the CEO to commence an application for a protection order within two working days because of the difficulty of complying with such a time constraint. The word 'must' was to be construed in accordance with s 56(2) of the Interpretation Act 1984 (WA). That section provides that where in a written law the word 'shall' is used in conferring a function the word is to be interpreted to mean that the function conferred 'must' be performed.
Sleight C further observed that:
The primary submission of the CEO was that the CCS Act should not be interpreted to mean that the CEO was barred from making an application for a protection order if he failed to do so within two working days after taking into protection and care a child pursuant to s 37. It is contended that such an interpretation barring the CEO from making an application would prevent the CEO from access to the protective procedures of the CCS Act where delay has occurred inadvertently. It is submitted that to deny the CEO access to the legislation to obtain a protection order would defeat the overall purpose of the legislation and potentially create a situation where a child in need of protection would be denied the legislative protection.
Counsel for the child submitted that the obligatory nature of s 38(4) meant that the failure of the CEO to make an application within two working days of the child being taken into provisional protection and care meant that the current substantive proceedings before the Children's Court were invalid and therefore the magistrate did not have any jurisdiction to hear the interim application. It was contended that this did not prevent the CEO making a fresh application and therefore the protection offered by the legislation was not defeated. I reject this submission as being inconsistent. If it is permissible to commence fresh proceedings then there is no reason why the application filed by the CEO on 30 December 2013 was not valid.
I agree with the submission of the CEO that if the effect of the subsection was to invalidate the current substantive proceedings in the Children's Court, then this would also invalidate further proceedings which would defeat the purpose of the CCS Act to provide protection to children who were in need of protection. For these reasons I do not agree that the delay by the CEO in making an application for a protection order invalidated the substantive protection proceedings and meant the magistrate was acting without jurisdiction [38] - [40].
The second issue considered by Sleight C concerned whether the child ought to be returned to the care of her mother given the CEO's failure to comply with the obligation imposed by s 38(4). His Honour considered that it should be inferred from the fact that proceedings were not commenced within two working days that the CEO had decided not to make an application for a protection order. Alternatively, his Honour was satisfied that the CEO had, in fact, decided not to make an application within the time specified by s 38(4). Accordingly, the CEO had been required to return the child to a parent or to another person referred to in s 38(2).
It followed from those findings that the child was not legally under the protection and care of the CEO at the time that the appellant had made her application for an interim order. Although the Children's Court had jurisdiction in the protection proceedings, the court had erred in determining the appellant's application on the assumption that the child was lawfully in the protection and care of the CEO. A miscarriage of justice had occurred as a result of that error:
Based upon the interpretation I have given to the legislation, the application before the magistrate proceeded on [the] incorrect premise that the child was legally under the protection and care of the CEO, that the mother had an onus on her interim application to establish reasons for return of the child to her and the effect of dismissing the application was that the child remained in the protective care of the CEO until the substantive application was heard. In view of this error I am satisfied a miscarriage of justice occurred [52].
Sleight C then considered what order should be made and in particular, whether the child should be returned to the appellant or the matter remitted to the Children's Court to be determined according to law. His Honour concluded that an order for the return of the child should be made having regard to the nature of the errors made by the court in refusing the appellant's application and the obligation imposed by s 38(2).

The CEO's submissions

The CEO contended that the decision in JT was to be distinguished from the circumstances of this matter as, in JT, no order had been made by the Children's Court placing the child in provisional care and protection by the time that the appellant's application for an interim order had been dismissed. In this matter, the Children's Court had made an interim order that RSD remain in the provisional protection and care of the CEO pursuant to s 133(2)(b) of the CCS Act. The CEO submitted that, on the reasoning of Sleight C in JT, the Children's Court had power to make the interim order and the order prevailed unless and until it was set aside.

The statutory scheme

The objects of the CCS Act are specified in s 6:
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(da)to support and reinforce the role and responsibility of parents in exercising appropriate control over the behaviour of their children; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e)to protect children from exploitation in employment.
Section 7 of the Act provides that, '[i]n performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration'. Section 8 of the Act specifies a number of matters that must be taken into account in determining what is in the child's best interests. Those matters include the need to protect the child from harm; the capacity of the child's parents to protect the child from harm; the capacity of the child's parents, or any other person, to provide for the child's needs; the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from the child's parents; the need for the child to maintain contact with the child's parents; the child's age; the child's physical, emotional, intellectual, spiritual and developmental needs and the likely effect on the child of any change in the child's circumstances. Section 9 of the Act specifies a number of principles that must be observed in the administration of the Act. The principles reflect the objects of the Act and the matters that must be considered in determining the best interests of a child.
It is relevant to note that the objectives and general principles relating to children specified in the CCS Act suggest that a protection order could only be made ex parte in exceptional circumstances, at least where one or both parents of the child or a person who is significant in the child's life has participated in, or indicated an intention to participate in, the protection proceedings. The focus of the Act is on protecting children from harm and the primary role of parents and others connected with a child in safeguarding and promoting the wellbeing of a child.
Part 4 of the CCS Act concerns the protection and care of children. Section 28(2) defines what is meant by the expression a child 'in need of protection'. The circumstances in which a child may be in need of protection include where the child has suffered, or is likely to suffer, harm as a result of the child's parents being unable to provide, or arrange for the provision of, adequate care for the child. The CEO is responsible for the day to day care, welfare and development of a child that has been taken into or placed in provisional protection and care: s 29(2). Section 29(3) provides that a child ceases to be in provisional protection and care if:
(a)the child is returned to or placed in the care of a person under s 38(2) or s 38(3)(b); or
(b)the court makes an interim order under s 133(2)(a) that the child be returned to or placed with a parent of the child; or
(c)the court makes an interim order under s 133(2)(c); or
(d)the court makes a protection order in respect of the child or refuses to make such an order.
The CCS Act confers various powers on the CEO to safeguard or promote the wellbeing of a child, including powers to make enquiries, conduct investigations and take a child into provisional protection and care.
Section 35 of the Act permits an officer designated by the CEO to apply to a judge or magistrate for a warrant for a child to be taken into provisional protection and care in circumstances where the officer:
(a)is unable to find the child;
(b)believes that leaving the child at the place where the child is living poses an unacceptable risk to the child's wellbeing;
(c)believes that if a parent of the child or other person becomes aware of a proposed protection application in respect of the child, the child will be moved from the place where the child is living and the officer will be unable to find the child.
Section 36(2)(b) provides that the CEO must make a protection application in respect of the child as soon as practicable but in any event not more than two working days after the child was taken into protection and care following the execution of a warrant issued under s 35. The court must endeavour to ensure that the first listing date for the protection application is not more than three working days after the application is made.
The Act does not provide for what is to happen in the event that the application is not made within the time specified by s 36(2)(b). Further, the CEO is compelled to make a protection application under s 36; the CEO does not have the option of deciding to return or place the child rather than commencing protection proceedings. Accordingly, a child taken into provisional protection and care pursuant to a warrant only ceases to be in provisional protection and care on the Children's Court making an interim order or making or refusing to make a protection order (see s 29(3)).
Section 37(2) specifies that a child may be taken into provisional protection and care without a warrant if an officer authorised by the CEO or a police officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing. Section 38 applies where a child has been taken into provisional protection and care under s 37.
Section 38(2) requires the CEO to ensure that the child is returned to or placed in the care of (among others) a parent of the child if the CEO decides not to make a protection application or other application under pt 4 of the CCS Act in respect of the child. The child is to be returned or placed as soon as practicable.
Section 38(3) provides that, if the child was already the subject of protection proceedings when he or she was taken into provisional protection and care, the CEO must make an application for an interim order under s 133(2)(b) or ensure that the child is returned to or placed in the care of a person referred to in s 38(2). The CEO is required to take either one of those steps as soon as practicable after the child was taken in provisional protection and care, but in any event in not more than two working days.
Section 38(4) applies where a child is taken into provisional protection and care pursuant to s 37 and the CEO decides to make a protection application or other application under pt 4. As has already been noted, the subsection provides that the CEO 'must' make the application as soon as practicable but in any event not more than two working days after the child is taken into provisional protection and care (where the child is not taken into provisional protection and care in a prescribed area of the State).
Section 39 requires the CEO to prepare a provisional care plan in respect of a child that is taken into provisional protection and care and the CEO decides or is required to make a protection application in respect of the child. The plan is to be prepared within seven working days. The CEO must ensure that a copy of the plan is given to the child, a parent of the child, any carer of the child and any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
Section 43 of the Act identifies the various forms of protection orders that may be made in respect of a child. Section 44(1) provides that a protection application can only be made by the CEO and must comply with the requirements specified in s 44(2). Those requirements do not refer to the time stipulations in s 36 and s 38.
The power to make a protection order is conferred on the Children's Court by s 45. The court must not make a protection order unless it is satisfied that making the order would be better for the child than making no order at all: s 46.
Part 5 of the CCS Act concerns protection proceedings. Section 133 provides that the Children's Court may make an interim order at any time 'in the course of' protection proceedings. The order may be made on the initiative of the court or on the application of a 'party'. The term 'party' is defined by s 147 and includes each parent of the child and the CEO. The types of order that may be made on an application under s 133 include an order that the child be returned to, placed with or remain with a parent (s 133(2)(a)); an order that the child be taken into or remain in provisional protection and care (s 133(2)(b)); and an order that the child be placed with a person following a report from the CEO on the person’s suitability (s 133(2)(c)).
It will be recalled that a child will cease to be in provisional protection and care if an order is made under s 133(2)(a) or (2)(c). Any other interim order made under s 133 will not disturb the child's status as being in the CEO's provisional protection and care.
Section 134 permits a party to apply for a variation or revocation of an interim order. The Children's Court must not vary or revoke the order unless it is satisfied that new facts or circumstances have arisen since the order was made or each party consents to the variation or revocation.
Protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit and in a way that facilitates the parties' participation in the proceedings (s 145 and s 153). Provision is made for the Children's Court to convene pre-hearing conferences (s 136) and to order reports concerning the wellbeing of a child (s 139). The CEO is also required to submit proposals for the wellbeing of the child in certain circumstances (s 143). The court must consider those proposals before making a protection order (s 144).
Finally, it should be noted that s 123 concerns the effect of a warrant issued under s 35. A warrant authorises an officer or police officer to enter a place where the officer reasonably believes a child to be; to remain in the place and search for the child; and if the child is found, to take the child into provisional protection and care and to such place as the CEO directs.

Mandatory time limits for commencing legal proceedings

The question of construction to be determined is whether the Children's Court's jurisdiction in protection proceedings is contingent upon the satisfaction of the time requirement stipulated by s 38(4) of the CCS Act where a child has been taken into provisional protection and care pursuant to s 37.
In many statutory contexts, the requirement that proceedings be commenced within a specified time is likely to be regarded as obligatory so that a failure to comply will prevent the action being brought (in the absence of a statutory power to extend the time for compliance): see D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011) [11.26]. The word 'must' in statutory provisions imposing time limits for commencing proceedings is most often a word of 'absolute obligation' so that compliance with the time requirement is either a precondition to the existence of jurisdiction or an essential condition of the right sought to be asserted: see, for example, Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 and David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 276 – 277 (Gummow J). Such an interpretation may be consistent with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory rather than merely directory: Wang (391) (Merkel J).
However, those principles relate to proceedings involving the assertion of a right. Section 36 and s 38 of the CCS Act do not confer a right on the CEO; rather, the sections impose an obligation on the CEO as the person who has provisional protection and care of a child. The nature of the obligation and the consequences of a failure to comply with s 36(2) and s 38(4) are to be determined by reference to the CCS Act read as whole. The principles briefly mentioned above do not assist in determining the intended meaning and effect of the sections.
Two further matters should be mentioned in this context. First, not all procedural requirements that are expressed in apparently mandatory language are, properly construed, mandatory in effect when the terms of the relevant statute and, in particular, the consequences of non-compliance are considered. For example, in PM v The Queen [2007] HCA 49; (2007) 232 CLR 370 a requirement that criminal proceedings should not be commenced against a child otherwise than by way of a court attendance notice was interpreted as exhortatory rather than mandatory. That conclusion was reached having regard to the natural meaning of the words used in the relevant provision and its legislative history [32] ‑ [33].
Second, s 56(2) of the Interpretation Act concerns the use of the word 'shall' in relation to the conferral of a function. The functions of the CEO under the CCS Act include caring for a child that has been taken into provisional protection and care and making applications for protection orders. However, s 36 and s 38 impose obligations on the CEO. The question of whether those obligations are mandatory and if so, what consequences attach to a failure to comply are to be determined by reference to the terms of the CCS Act rather than by the application of s 56(2) of the Interpretation Act.

The proper construction of s 38(4)

In my view, a number of considerations are relevant to the proper construction of s 38(4).
First, a child may be taken into provisional protection and care under the CCS Act in one of three ways: pursuant to a warrant obtained under s 35; without a warrant pursuant to s 37; and by an interim order made by the Children's Court under s 133(2)(b). A child is to be taken into provisional protection and care if the child is in need of protection (s 35(1)) or where it is reasonably suspected that there is an immediate and substantial risk to the child’s wellbeing (s 37(2)). It is apparent from s 28(2), and from the provisions of pt 4 of the CCS Act as a whole, that a child is to be taken into provisional protection and care to prevent harm, abuse or neglect.
Second, the expression 'provisional protection and care' conveys much about the intended meaning. A child is taken into provisional protection and care because the child needs protection from harm, abuse or neglect; the CEO is obliged to care for the child and the CEO's protection and care is provisional to any decision made under s 38(2) and more generally, to any order made by the Children's Court in protection proceedings.
Third, s 35 ‑ s 39 comprise subdiv 3 of div 2, pt 4 of the CCS Act. The sections are to be read together. They contain those provisions of the Act that enable a child to be taken into provisional protection and care without a court order (other than a warrant issued under s 35). The provisions of s 35 and s 36 are significant for the purpose of construing s 38.
Fourth, as has been noted, s 36 makes no provision for what is to occur if the CEO fails to commence protection proceedings within two working days.
Fifth, the CCS Act draws a distinction between the circumstances in which a child may be taken into provisional protection and care. Section 35 and s 36 apply where it is believed that a child is in need of protection. Section 37 and s 38 apply where it is reasonably believed that there is an immediate and substantial risk to the child’s wellbeing. That distinction explains why a warrant is required in one instance and not in the other instance.
Sixth, the CEO does not require a court order to retain a child in provisional protection and care. The child remains in the provisional protection and care of the CEO until one of the events specified in s 29(3) occurs.
Seventh, the provisions of s 38(2) and s 38(4) are to be construed in the context of s 37; that is, s 38 is concerned with a child that has been taken into provisional protection and care because an officer or police officer reasonably suspected that there was an immediate and substantial risk to the child's wellbeing.
Eighth, the trigger for s 38(2) is the CEO's decision. However, the subsection does not prescribe the time within which the CEO's decision must be made. Rather, the timeline for s 38 is provided by s 38(4).
Ninth, only the CEO may make an application for a protection order. A parent or other party to protection proceedings can only apply for an interim order or oppose the making of a protection order once a child has been placed in provisional protection and care.
Tenth, oversight of the care by the CEO of a child that has been taken into provisional protection and care is primarily through the requirement for care plans and those parts of the CCS Act that provide for review of care plans and for the establishment of case review panels. The Children's Court has a supervisory role through the power to make interim orders and to require reports under div 4, pt 5 and, in the context of making a protection order, by the requirement that it must consider a proposal prepared pursuant to s 143. However, the court’s primary function is to determine whether a protection order should be made and if so, the type and terms of the order.
Eleventh, s 29(3)(a) provides that a child ceases to be in provisional protection and care if the child is returned to or placed in the care of a person under s 38(2)(a) or s 38(3)(b). That is, the child does not cease to be in provisional protection and care on the CEO making a decision to return or place the child or on the expiry of two working days from the child being taken into provisional protection and care. The reason for that is obvious – the provision is intended to ensure that the CEO remains obliged to protect and care for a child until another person assumes that responsibility.
Having regard to those considerations, it would be most surprising if Parliament had intended that the Children’s Court would be denied jurisdiction over a protection application or other application under pt 4 of the CCS Act because of a failure to comply with the time requirements specified in s 36(2) and s 38(4) – indeed, an interpretation to that effect would be entirely inconsistent with the objects and scheme of the Act and, in particular, the circumstances in which a child may be taken into provisional protection and care. It can hardly be thought that Parliament considered that the appropriate sanction for a failure to comply with s 36(2) or s 38(4) (and by inference, s 38(2)) was that a child, who was considered to be in need of protection or who was at an immediate or substantial risk, should be:
(a)returned to a parent or other person who had possibly failed to protect and care for the child or who was suspected of being a source of harm;
(b)or placed with another person after two working days – a time which would inevitably be insufficient to enable the CEO to make enquiries as to whether the placement was appropriate for the protection and care of the child;
(c)in any event, denied the benefit of all those provisions of the CCS Act that are designed to protect and promote the wellbeing of a child that has been taken into provisional protection and care – most notably, the benefit of a protection order if such an order was thought desirable by the Children’s Court but also, the benefit of care plans, case reviews and s 143 proposals.
In my view, those consequences, which can only be characterised as absurd, indicate that the time requirements specified in s 36(2), s 38(2) and s 38(4) were intended to be exhortatory and not mandatory. I respectfully disagree with the decision of Sleight C in JT to that extent. I should add that to interpret the sections in that way is not to conclude that they serve no purpose: refer to the observations of Sleight C in JT at [50].
Accordingly, the Children's Court has jurisdiction over protection proceedings even if those proceedings were commenced by the CEO more than two working days after a child was taken into provisional protection and care. In relation to this matter, the Children's Court has jurisdiction to hear and determine the Application and to make interim orders in the Application. The Interim Order was validly made within the jurisdiction of the Children's Court.
If I am wrong in concluding that the time requirements specified in s 36 and s 38 are exhortatory and not mandatory, I nevertheless agree that any order made by the Children's Court in protection proceedings commenced after the time periods specified in s 36(2) and s 38(4) is not invalid having regard to the considerations to which I have referred. That is, the time requirements were not intended to, and do not operate as, pre‑conditions to the exercise of jurisdiction by the Children's Court in protection proceedings even if the requirements are mandatory.
That conclusion is not only compelled by the objects of the CCS Act and the scheme of the Act relating to provisional protection and care but also by textual considerations. Most significantly, s 38 is expressly stated to only apply to a child that has been taken into provisional protection and care under s 37. Accordingly, a child who has been taken into provisional protection and care under s 35 can only cease to be in provisional protection and care pursuant to an order made by the Children's Court in protection proceedings or on the court refusing to make a protection order: s 29(3)(b) ‑ (d). It follows that it cannot have been intended that the time requirement in s 36(2) would operate to condition the jurisdiction of the Children's Court over protection proceedings. There would otherwise be no mechanism for bringing provisional protection and care to an end and no means by which the parents or others associated with a child could contest the actions of an officer or police officer taking a child into provisional protection and care and the CEO retaining the child in his protection and care.
There is no warrant for interpreting the meaning and effect of s 38(4) differently to s 36(2). Indeed, the need for the Children's Court to retain jurisdiction over protection proceedings whenever they may have been commenced is even more compelling where a child has been taken into provisional protection and care under s 37 given that the child would have been taken on a reasonable suspicion that there was an immediate and substantial risk to the child's wellbeing.
I also consider that the requirements of s 36 and s 38 are directed to the position of the CEO rather than to the jurisdiction of the Children's Court. That appears to have been the view also taken by Sleight C in JT.
There is one further aspect of the decision in JT about which I wish to comment. His Honour considered that the CEO was to be taken to have decided not to make a protection application for the purpose of s 38(2) if he did not make the application within two working days and that the child was, as a consequence, no longer legally under the protection and care of the CEO [51]. With respect, this does not appear to be an entirely accurate statement of the effect of s 38(2) read with s 29(3). As I have already indicated, in my view a child lawfully remains in the provisional protection and care of the CEO until the child is actually returned to or placed with another person who assumes responsibility for the care of the child. Putting aside the question of whether the CEO is to be deemed to have made a decision by not making a protection application within two working days (a question on which I express no view), I do not consider that the CEO's continuing protection and care for a child is unlawful once it is decided not to make a protection application. The CEO is obliged to return or place the child as soon as practicable after making that decision and a parent or other person who had standing may, in appropriate circumstances, be able to enforce that obligation in administrative proceedings (or indeed, to enforce the CEO's obligation to make a decision under s 38(2)). However, that does not mean that the CEO's protection and care of the child is unlawful, at least in the absence of a court order.
Finally, it should be noted that extensive amendments were made to the CCS Act by the Children and Community Services Legislation Amendment and Repeal Act 2015 (WA). The amendments were made well after Sleight C delivered his decision in JT. Sections 35 ‑ 39 of the CCS Act were not amended. It may be inferred that those sections would have been amended had Parliament considered that his Honour's decision did not give effect to what had been intended; in particular, had Parliament intended that the jurisdiction of the Children’s Court in protection proceedings would be conditional on compliance with the terms of s 36(2) and s 38(4).

Disposition of the appeal

The effect of the findings made above is that the appellant should be granted leave to appeal and the appeal should be allowed on the natural justice grounds. The Application must be remitted to the Children's Court to be heard and determined. It will, no doubt, be necessary for the court to consider and make findings on a number of the factual matters that the appellant has sought to raise in this appeal.
Although I have found that the Children’s Court had jurisdiction to make the Interim Order, the proper construction of s 38(4) raised an important question of statutory interpretation notwithstanding the decision in JT. I would grant leave to appeal on the s 38 ground. However, the appellant has failed on that ground.
Leave to appeal should be refused on the remaining proposed grounds of appeal. Grounds 1 ‑ 3 of the appeal notice as initially filed concern the consequences of the magistrate making the Protection Order or decisions made by the Children's Court and its registry. Any injustice caused by those matters will be addressed by remitting the Application to the Children's Court to be heard and determined.
Further, the materials that the appellant has identified as being the documents that she was denied the opportunity of presenting to the Children's Court or which constitute fresh evidence do not concern any question that can be determined by this court exercising appellate jurisdiction for the reasons that have been explained. The materials do not raise matters that can be determined by this court in deciding whether the Children's Court erred in fact or law or in deciding what orders should be made in disposing of the appeal. In particular, they do not establish that the court erred in making the Interim Order (as they raise matters on which findings have not been made by the Children's Court and which cannot be made by this court). Accordingly, leave to appeal should also be refused on proposed ground 4 of the appeal notice as initially filed and on that part of ground 2 of the amended appeal notice that alleges that there was a failure of 'due process in whole proceedings' and the 'whole proceedings were ambiguous and wrong'.