DEPARTMENT OF COMMUNITIES and DEAKE

[2021] FCWA 237

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: DEPARTMENT OF COMMUNITIES and DEAKE [2021] FCWA 237

CORAM: SUTHERLAND CJ

HEARD: 29 NOVEMBER 2021

DELIVERED : Ex tempore

FILE NO/S: [Redacted]

BETWEEN: DEPARTMENT OF COMMUNITIES

Applicant

AND

DEAKE

Respondent

Catchwords:

CHILDREN - Parens patriae jurisdiction - 13 year old child with significant neurodevelopmental issues against a background of significant trauma - Child in the care of the CEO of the Department of Communities and subject to a Protection Order (Time Limited) - Ongoing behavioural issues - Serious risk of harm to child and violence to others - Proposed managed ongoing residential detention - Order made in exercise of jurisdiction

Legislation:

Nil

Category: Not Reportable

Representation:

Counsel:

Applicant	:	[Ms A]
Respondent	:	[Ms B]
Independent Children's Lawyer	:	Ms B

Solicitors:

Applicant	:	[Law Firm A]
Respondent	:	[Law Firm B]
Independent Children's Lawyer	:	Law Firm B

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

Director Clinical Services, Child & Adolescent Health Services and Kizsko

[2016] FCWA 19

Re Beth [2013] VSC 189

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 Department of Communities and Deake has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA)

SUTHERLAND CJ:

1This application by the CEO of the Department of Communities (“the Department”) concerns [Master Deake], who was born [in] 2008, and is now 13 years of age [(“Child A”)]. Child A re-entered the care of the CEO on 22 July 2020 and is subject to a Protection Order (Time Limited), made on 1 June 2021.

2Child A is a high-needs child with significant neurodevelopmental issues. He has been diagnosed with a complex form of epilepsy, non‑epileptic seizures, reactive attachment disorder, [a number of developmental disorders] and potential attention deficit hyperactivity disorder. He has been assessed as exhibiting typical behaviours of a two-year-old toddler.[1]

[1] Applicant’s written submissions filed 24 November 2021: [5]

3Child A also has a background of significant trauma and ongoing psychosocial stresses, largely due to being exposed to family and domestic violence as a child. Treating doctors have concluded that Child A’s brain insult with frontal lobe executive dysfunction now manifests in Child A’s inability to self-regulate.[2]

[2] Ibid: [6]

4The Applicant seeks an order that authorised officers of the Department be authorised to detain Child A for up to six hours at a time at his residential accommodation (being three hours plus an additional three hours in the event that an authorised officer assesses that a secure care arrangement is required for Child A, to process the secure care arrangement for him whether or not the secure care arrangement is able to be implemented), by locking and/or not unlocking the external windows and doors to the residential accommodation.

5[Ms B] (who has been appointed as Child A’s Independent Children’s Lawyer not only for these proceedings but also in the longstanding and ongoing Children’s Court proceedings), has been served with a copy of the application and supporting documents. She has also had the opportunity to meet with the Applicant’s solicitor and representatives of the Department this morning. Her position today is that she consents to the application and the order sought by the Department.

6Three affidavits have been filed in support of the application as follows: (1) an affidavit by [Mr C], [a Senior Psychologist]; (2) an affidavit of [Mr D], [a social worker] and who is Child A’s current case manager; and (3) an affidavit of [Ms E], [an employee] in the Residential Care Division of the Department, who was previously [involved with] [Community House D] and is currently [involved with] [Community House E].

7The Applicant has filed an outline of Submissions. The ICL indicates that she has read the Submissions and agrees with and/or does not take issue with the contents thereof. The Submissions have been of great assistance to me in setting out the following matters.

8At paragraphs 5 to 24 of the Submissions, the Applicant sets out Child A’s factual history and complex behavioural issues.

9At paragraphs 25 and 26 of the Submissions, the Applicant then sets out details of Child A’s overall therapeutic treatment plan.

10At paragraphs 27 to 32 of the Submissions, the Applicant then details Child A’s therapeutic crisis intervention plan.

11At paragraph 33 of the Submissions, the Applicant sets out the therapeutic rationale for the orders being sought by it as follows:

As part of the proposed updated Therapeutic Rationale/Process, the Applicant is seeking the Court’s authorisation of an additional measure. This measure is to keep the external doors and windows of [Child A’s] residential placement at [Community House E] locked against [Child A’s] wishes for up to six hours at a time at his residential accommodation, being three hours plus an additional three hours in the event that an authorised officer of the Applicant assesses that a secure care arrangement is required for [Child A], that is, transportation to [Secure Care Centre F] to process the secure care arrangement for [Child A], whether or not the secure care arrangement is able to be implemented by locking and/or not unlocking the external windows and doors to the residential accommodation. The purpose of this additional measure is to enable the Applicant’s staff to have the additional time in which to assist [Child A] to regulate his emotions.

12At paragraphs 34 to 42 inclusive of the Submissions, the Applicant sets out the details of how the proposed plan will operate in practice and bearing in mind that if Child A becomes dangerous or too unsafe to manage within a house environment, the six-hour containment period gives the staff the ability to seek assistance from the police and to seek services from the Secure Care Centre F.

13At paragraph 43 of the Submissions, the Applicant submits that the order from this Court is legally necessary in light of the prohibition on unlawfully detaining a person in section 333 of the Criminal Code because the Children and Community Services Act 2004 does not provide its staff with the powers to detain Child A in the manner sought pursuant to the order.

14At paragraph 52 [of the Submissions], the Applicant submits that as the scope of parental responsibility to interfere with or restrict the liberty of a child is not clearly defined, it is necessary to seek the Court’s authorisation for the detainment of Child A that it proposes, that is, for up to six hours at a time.

15At paragraph 62 of the Submissions, the Applicant submits that, in the absence of a parens patriae order enabling the Applicant and its staff to take action as proposed, the Applicant and its staff may be acting beyond their authorisation under the relevant provisions of the Children and Community Services Act 2004 and otherwise would be unlawfully detaining Child A contrary to section 333 of the Criminal Code.

16At paragraphs 43 and onwards, the Submissions address the Applicant’s concerns about the limits upon its rights of parental responsibility pursuant to the order that has been made under the Children’s Court proceedings and relevantly the limits of its powers under various sections of the Children and Community Services Act 2004.

17At paragraph 67 and onwards, the Submissions address the Family Court’s jurisdiction. As Child A’s parents were never married, I am satisfied that the Family Law Act 1975 (Cth) is not applicable.

18Having regard to the provisions of section 36 of the Family Court Act 1997 (WA) (“the Act”), section 162 of the Act and the observations made by Chief Judge Thackray in the decision of Director Clinical Services, Child & Adolescent Health Services and Kizsko [2016] FCWA 19, I am satisfied that the Court does have jurisdiction to deal with this matter, and in particular that the operation of sections 36 and 162 of the Act effectively confers the parens patriae jurisdiction of the Supreme Court onto the Family Court of Western Australia.

19I am satisfied that, having regard to the fact that Child A is an ex‑nuptial child, that the requirements in s 36(3) of the Act are met: namely that (1) Child A is present in Western Australia; (2) the Applicant in the proceedings is also resident of Western Australia; and (3) the Applicant is a person concerned with the care, welfare or development of Child A within the meaning of s 185 of the Act, then this Court has jurisdiction to deal with the application.

20At paragraph 81 and onwards of its Submissions, the Applicant discusses the parens patriae jurisdiction and the relevance of the United Nations Conventions on the Right of the Child in this case. In short, I am satisfied that the parens patriae jurisdiction extends to the making of orders interfering with the personal integrity and liberty of children and that such orders do not breach the child’s human rights if the deprivation of liberty is a necessary consequence of the exercise of parental responsibility for the protection and the promotion of the child’s welfare.

21At paragraph 81 and onwards, the Applicant’s Submissions discuss the exercise of the parens patriae jurisdiction in some detail, including a number of relevant cases that have some application (or at least are factually analogous) to this case: in particular the matter of Re Beth [2013] VSC 189 (referred to in paragraph 94 of the Submissions).

22I accept the Applicant’s Submissions. In this case, I am satisfied that the interests of Child A necessitate the making of the order sought by the Applicant. I am satisfied on the basis of the available evidence that Child A is not capable of emotionally regulating without assistance and that this presents a danger both to himself and to the community. In my view, there is a clear justification for the making of the order sought in the terms sought by the Applicant as attending to both the welfare of Child A and to the community at large.

23I am also satisfied that Child A’s case is an exceptional case in which the gravity of the danger is analogous to the cases outlined in the Submissions, and in particular to Beth’s case which I have referred to above.

These reasons are the reasons for decision I delivered on 29 November 2021, 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.

KV

Associate

15 DECEMBER 2021