JD v Department of Communities - [2021] WASC 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JD -v- DEPARTMENT OF COMMUNITIES [2021] WASC 218
CORAM:   SMITH J
HEARD:   31 MARCH 2021 AND BY WRITTEN SUBMISSIONS 12 & 14 APRIL, 4 MAY 2021
DELIVERED          :   2 JULY 2021
FILE NO/S:   SJA 1051 of 2020
BETWEEN:   JD
First Appellant
GD
Second Appellant
AND
DEPARTMENT OF COMMUNITIES
First Respondent
SD
Second Respondent
ZS
Third Respondent
CD
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S VOSE
File Number            :   PER/PC 477 of 2014

Catchwords:

Protection and care of children - Children's Court magistrate made protection order (time‑limited) for two years - Standing to institute an appeal by a person who is not an applicant to the application determined by the magistrate and who is not a parent or guardian or the child considered

Criminal Appeals Act 2004 (WA) - Jurisdiction - Grounds of appeal essential to consideration of the court to grant leave to appeal - In the absence of grounds an appeal is taken to be dismissed

Legislation:

Children and Community Services Act 2004 (WA), s 42, s 61, s 68, s 69A, s 89, s 93, s 94, s 133, s 147
Children's Court of Western Australia Act 2004 (WA), s 42, s 43(4)
Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 10
Criminal Procedure Rules 2005 (WA), r 65(2)

Result:

Leave to the appellants to institute an appeal out of time refused
Fourth respondent's appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	Ms J E Buller
Second Respondent	:	Mr D Rice
Third Respondent	:	No appearance
Fourth Respondent	:	In person

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	Griffiths Rice & Co
Third Respondent	:	No appearance
Fourth Respondent	:	In person

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

Allbeury v Corruption and Crime Commission [2012] WASCA 84
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
DH and Department for Child Protection [2011] WASAT 146
Kezic v City of Stirling [2019] WASCA 136
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
VB v Chief Executive Officer of the Department of Communities [2019] WASC 315
VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146

SMITH J:

The procedural history of the appeal and the result

JD and GD apply for leave to appeal against an order made by a Children's Court magistrate on 11 June 2020, in PER/PC 477 of 2014, being a protection order (time-limited) for a period of two years in respect of the appellants' grandchild, namely SD (born 7 September 2014).
The protection order (time-limited) was made following a hearing before a presiding magistrate over a period of four days, commencing on 8 June 2020.
At the outset of the hearing on 8 June 2020, the appellants, JD and GD, were joined as a party to the proceedings (pursuant to s 147(e) of the Children and Community Services Act 2004 (WA))[1] and appeared in person.
[1] ts, 8 June 2020, 19 ‑ 20.
The applicant to the proceedings, the Chief Executive Officer of the Department of Communities (CEO), was represented by counsel. The mother of the child, ZS, was, of right, a party to the proceedings,[2] and was represented by counsel. The child, SD, the subject of the protection proceedings, was also a party as of right, and was represented by counsel.[3] The father of the child, CD, took no part in the hearing and did not appear.
[2] Children and Community Services Act 2004 (WA) s 147(b).
[3] Children and Community Services Act 2004 (WA) s 147(a).
The protection order was made under s 68 of the Children and Community Services Act. Pursuant to s 42 of the Children's Court of Western Australia Act 1998 (WA), an order on the hearing of an application by a Children's Court magistrate may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA).
The appellants filed a notice of appeal seeking leave to appeal the protection order on 6 July 2020. However, the notice of appeal did not specify any grounds, and as such the notice did not comply with s 10(2) of the Criminal Appeals Act, which provides that an appeal must be commenced by lodging with the Supreme Court an application for leave to appeal that sets out the grounds of appeal.
On 20 November 2020, Principal Registrar Strk made orders that the child, SD, the mother of the child, ZS, and the father of the child, CD, be joined as parties to the appeal, and required the appellants by 4 December 2020 to file and serve a notice of appeal containing their grounds of appeal, and any affidavit in support of their application for an extension of time. The appellants complied with the order on 4 December 2020 by filing a notice of appeal, specifying the grounds of appeal, and a supporting affidavit.
On 30 November 2020, the child's legal representative filed a notice that the child, SD, intended to take part in the appeal and was legally represented.
On 4 December 2020, the child's father, CD, filed a notice stating that he was not legally represented, that he intended to take part in the appeal and he also appeals against the primary court's decision specified in the appellants' appeal notice. The child's father, CD, however, did not file any grounds of appeal in support of his application to appeal the protection order out of time.
In written submissions filed on behalf of the CEO on 17 March 2021, the CEO raised a preliminary issue, and that was whether the appellants had a right to bring an appeal against the protection order (time‑limited) made by the presiding Children's Court magistrate on 11 June 2020.
In light of the fact that the CEO raised this preliminary issue, at the hearing of the appeal the father of the child, CD, was asked whether he intended to adopt the grounds and submissions of the appellants.
CD, in response, indicated to the court that he wished to do so, and that he did not intend to make any additional submissions.[4]
[4] ts appeal, 31 March 2021, 16.
At the conclusion of the hearing of the appeal, an order was made allowing CD to file and serve any submissions in respect of his standing to adopt the grounds and submissions of the appellants. The reason why CD was provided with an opportunity to provide submissions in respect of his standing to institute an appeal is that at the hearing of the appeal counsel for the CEO raised an argument that if the appellants did not have standing to institute an appeal, pursuant to s 42 of the Children's Court of Western Australia Act, it therefore followed that if the appeal was commenced by someone without standing there was no appeal on foot, which in turn had the effect that CD did not have standing to cross-appeal the order.
The argument the CEO sought to raise in respect of the standing of CD to bring an appeal against the protection order (time‑limited) was abandoned by the CEO.
Following the hearing of the appeal, counsel for the CEO filed supplementary submissions on 14 April 2021 in which it was conceded that CD, as a parent of the child, had standing to appeal the protection order made by the Children's Court, pursuant to s 42(1)(b) of the Children's Court of Western AustraliaAct.
On 4 May 2021, CD filed written submissions, which stated that he did not intend to adopt the appellants' grounds and submissions for the appeal, and also stated that he did 'not have any view other than (the child) SD returning to her family home (being the appellants' home) in her grandparents care where SD was happy and thriving for 5 years'. Because CD's position in his written submissions was different to the intention he expressed in the notice he filed on 4 December 2020, and the position he put to the court in the hearing of the appeal on 31 March 2021, an enquiry was made of CD to clarify whether, in fact, he did not now intend to adopt the appellants' grounds and submissions. In correspondence sent to CD by the court on 4 May 2021, CD was informed that if he did not intend to adopt the appellants' grounds he was required to state his grounds of appeal, and why he sought to do so after the appeal had been heard. He was also informed that if he sought to put forward his own grounds of appeal, the other respondents to the appeal would be entitled to be heard as to whether he should be allowed, at a late stage, to put any new matters before the court.
On 7 May 2021, the court received correspondence from CD in which he stated that he did not wish to submit grounds, that he agreed with the appellants' grounds but he did not adopt their grounds as his own to take on their appeal. He also stated that he did not wish to raise new grounds of appeal as he was 'in line with' the appellants to have his child returned to their care.
For the reasons that follow:
(a)leave for the appellants to institute an appeal out of time must be refused as they do not have standing to institute an appeal against the protection order (time‑limited) made on 11 June 2020 by the Children's Court magistrate; and
(b)the appeal by CD should be dismissed because although CD was joined as a respondent to the appeal, in the absence of any grounds of appeal, either adopted by him from the appellants' grounds or his own grounds, the appeal by him must necessarily be taken to be dismissed under s 9(3) of the Criminal Appeals Act.

A summary of the presiding magistrate's factual findings as to the reasons why a protection order (time-limited) was made on 11 June 2020 for a period of two years

The presiding magistrate found that he was satisfied beyond the required standard of proof, on the balance of probabilities, that it was in the best interests of the child, SD, to make a protection order (time‑limited) for a period of two years. In making this finding, his Honour made the following factual findings:[5]
[5] ts, 11 June 2020, 3 ‑ 7.
(1)SD was removed from the care of her parents, CD and ZS, when she was a baby (one month old). ZS was a teenager and lacked the confidence needed to be an effective mother and was in a relationship with CD that was marred by domestic violence and drug use;
(2)at eight months old, SD was placed with the appellants and was well cared for by them. The appellants moved to the Walpole area in 2014 and SD remained in their care until November 2019, when she was removed and placed with general foster carers;
(3)while SD was in the care of the appellants, ZS had limited contact with SD and planned reunification did not progress due to a range of factors, including that:
(i)ZS was intimidated and overborne by the appellants and did not have the capacity to constructively work with the appellants to build a relationship with SD without intervention;
(ii)ZS was afraid of her ex‑partner, CD, on the basis of past violence; and
(iii)ZS was not sufficiently supported by the appellants or the CEO to overcome the financial and practical difficulties in facilitating contact with SD;
(4)since SD has been placed in the care of general foster carers, contact between ZS and SD has increased and their relationship is blossoming;
(5)the appellants were a significant roadblock to the development of any relationship growth between ZS and SD;
(6)following the removal of SD from their care, the appellants behaved extremely poorly, being abusive and 'very scary' to employees of the Department of Communities;
(7)there is a need for a child to have an attachment to a natural parent; and
(8)the evidence suggests that reunification between ZS and SD will occur, and that this is in the best interests of SD.

The standing of JD and GD to seek leave to appeal against a protection order (time‑limited) made by the Children's Court magistrate

An appeal is a creature of statute. The court does not have jurisdiction to hear and determine an appeal unless a statute so provides.[6]
[6] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2] (McLure P); Kezic v City of Stirling [2019] WASCA 136 [11]; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225 (Rich, Dixon, Evatt and McTiernan JJ).
Appeals from courts of summary jurisdiction lie to a single judge under pt 2 of div 2 of the Criminal Appeals Act. The right of appeal of a person aggrieved by a decision of a court of summary jurisdiction is conferred by s 7(1) and can only lie as provided for in s 7, which, pursuant to s 7(4) and s 7(5), is subject to any other written law, and in particular to pt 5 of the Children's Court of Western Australia Act.
The right of a person to bring an appeal against a protection order made by the Children's Court, when the court is not constituted by, or does not include, a judge of the Children's Court, is expressly conferred by s 42(1) of the Children's Court of Western Australia Act. Consequently, s 42(1) is a written law that expressly confers jurisdiction as contemplated by s 7(1) and s 7(4) of the Criminal Appeals Act. Section 42(1) provides:
42.Appeal against certain other orders
(1)Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the Children and Community Services Act 2004 the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction, by ‑
(a)the CEO as defined in section 3 of the Children and Community Services Act 2004; or
(b)the parent or guardian of the child in relation to whom the application was made; or
(c)the child in relation to whom the application was made; or
(d)the person by whom the application was made.
The protection order (time-limited) the subject of this appeal was made pursuant to s 68 of the Children and Community Services Act. Section 68 is a provision within pt 4 of the Children and Community Services Act. Consequently, a protection order made under s 68 is an order that may be the subject of an appeal to a judge of the Supreme Court under s 7 of the Criminal Appeals Act.
However, not every person who is aggrieved by an order made under pt 4 or pt 5 of the Children and Community Services Act is conferred with standing to institute an appeal. Put another way, not every person who is aggrieved by a finding, order or other decision made under pt 4 or pt 5 of the Children and Community Services Act is conferred with the right to bring an appeal.
The persons who are conferred with standing to bring an appeal are those specified in subparagraphs (a) to (d) of s 42(1) of the Children's Court of Western Australia Act. The right to institute an appeal against a finding, order or other decision made under pt 4 or pt 5 is only vested in the persons who meet the descriptions in subparagraphs (a) to (d).
The appellants are not a parent or guardian of the child, the child, or the person by whom the application was made and determined by the Children's Court magistrate on 11 June 2020.
The application before the Children's Court at the hearing of PER/PC 477 of 2014 was an amended application, filed in the Children's Court by the CEO on 21 November 2019, seeking a final order that the protection order (time-limited), made on 18 December 2014 for a period of two years, be revoked and be replaced by a protection order (until 18).
At the hearing of the amended application in June 2020, the appellants did not have any application before the court that had been made by either of them.
The only application that had been made by them had been an application filed by them on 15 November 2019 under s 133 of the Children and Community Services Act. This application sought interim orders to return the child, SD, to their care until an application for a protection order (special guardianship) was finalised.[7]
[7] Book of Documents, volume 2, tab 23, 624 ‑ 625.
A protection order (special guardianship) is an order that a special guardian be appointed who is an individual who is given, or two individuals who are jointly given, parental responsibility for a child.[8]
[8] Children and Community Services Act 2004 (WA) s 42, s 61.
At the time that the appellants' interim application was filed, there was an undetermined amended application before the Children's Court that had been filed by the CEO on 21 January 2019 seeking a protection order (special guardianship) that nominated the appellants as proposed special guardians, subject to a number of conditions requiring the appellants to facilitate contact between the child, SD, and her mother, ZS. However, this amended application was withdrawn by the filing of the subsequent application, on behalf of the CEO on 21 November 2019, for a protection order (until 18).
The appellants' application for interim orders filed on 15 November 2019 was heard by the Children's Court on 6 February 2020 and was refused.
Consequently, when the hearing before the Children's Court commenced on 8 June 2020 for a protection order (until 18) there was no application before the Children's Court that had been filed by the appellants.
At the commencement of the hearing of the application in June 2020, the appellants did not make an oral application for a protection order (special guardianship) in their favour. Instead, JD, on behalf of herself and her husband, GD, informed the presiding magistrate that they would consent to a protection order (until 18) if SD was placed back in their care.[9]
[9] ts, 8 June 2020, 10 ‑ 12.
In any event, even if the appellants had sought to make an oral application for a protection order (special guardianship), such an application could not have been made by them at the hearing in June 2020. This is because an application for a protection order (special guardianship) made by a person other than the CEO can only be made, pursuant to s 69A of the Children and Community Services Act, by an individual in respect of a child, if the individual has been the carer of the child (and the child has been the subject of a protection order (time-limited) or a protection order (until 18)) for at least the period of two years immediately preceding the day on which the application is made.
At the time of the hearing in June 2020, the appellants had not been the carer of SD for at least a period of two years immediately preceding 8 June 2020. Whilst the appellants had been the carers of SD for a period that exceeded two years, they had ceased to be the carers of SD on 5 November 2019, when the CEO removed SD from their care and placed her with a foster carer.
The hearing initially proceeded on the basis that no party was opposed to a protection order (until 18) being made by the court. The issue in dispute was whether the magistrate should make a recommendation that the child be returned to the care of the appellants.[10]
[10] ts, 8 June 2020, 11 ‑ 12; clearly, as set out in [61] - [68] of these reasons, the Children's Court had no power to make a placement order, as such a matter is a placement arrangement that can only be reviewed pursuant to subdiv 4 of div 5 of pt 4 of the Children and Community Services Act 2004 (WA), in respect of which a right of review lies to apply for an initial review and then a further review by the State Administrative Tribunal.
Although there was no application by the appellants for a guardianship order when the application by the CEO was heard in June 2020, this did not prohibit the presiding magistrate from making a protection order (special guardianship). This is because s 68(5) of the Children and Community Services Act provides that on the hearing of an application by the CEO for the revocation of a protection order, and the making of another protection order in respect of a child, the court may, if satisfied that it is in the best interests of the child to do so, revoke the order and, subject to pt 4, make the protection order sought (by the applicant) or another protection order in respect of the child. The types of protection orders prescribed by the Children and Community Services Act are a protection order (supervision), a protection order (time-limited), a protection order (until 18) and a protection order (special guardianship).

On the second day of hearing the application, before either of the appellants gave evidence, counsel for the CEO made a formal application to amend the application for a protection order (time‑limited).[11] The application to amend was granted.
[11] ts, 9 June 2020, 136.
This application was made after the mother of the child, ZS, had completed her evidence and after the presiding magistrate indicated to the parties that a two-year protection order, instead of a protection order until the age of 18, may be an appropriate order to enable steps to be taken towards reunification between the child, SD, and her mother, ZS.[12]
[12] ts, 9 June 2020, 130 ‑ 133.
When this amendment to the application was raised, JD informed the presiding magistrate that she, together with GD, was of the opinion that the court should make a protection order (special guardianship) (in their favour as special guardians).[13]
[13] ts, 9 June 2020, 136.
Despite the fact that the appellants are clearly aggrieved by the protection order (time‑limited), it is clear that the appellants have no right to institute an appeal pursuant to s 42(1)(d) of the Children's Court of Western Australia Act. This is because it cannot be found that either of the appellants were persons who made the amended application for a protection order that was heard and determined by the presiding Children's Court magistrate on and between 8 June 2020 to 11 June 2020.
As the appellants have no right to institute an appeal, their appeal is not competent, and leave to appeal the protection order (time-limited) made on 11 June 2020 must be dismissed.
Where an appeal cannot be instituted, the court has no statutory power to hear and determine the appeal. Consequently, it is not necessary to consider whether any of the grounds put forward by JD and GD have any prospect of success, nor is it necessary to consider their application to adduce additional evidence in their appeal.

Whether an appeal by CD must fail in the absence of any grounds of appeal

The availability of an appeal depends upon the rights and jurisdiction conferred upon an appellate body to determine an appeal.
Section 10(1) of the Criminal Appeals Act provides that an appeal under div 2 (of pt 2) must be commenced and conducted in accordance with div 2 and the rules of court. Pursuant to s 10(2), an appeal under div 2 must be commenced by lodging with the court an application for leave to appeal that sets out the grounds of the appeal.
The grounds for appeal available under s 8 of the Criminal Appeals Act in this matter were: the presiding magistrate made an error of law or fact or both; the presiding magistrate acted without or in excess of jurisdiction; or that there had been a miscarriage of justice.
Rule 65(2) of the Criminal Procedure Rules 2005 (WA) relevantly provides:
The grounds of appeal must not merely allege ‑
(a)that the primary court erred in fact or in law; or
(b)that the primary court's decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence; or
(c)that the primary court's decision is unsafe or unsatisfactory; or
...
The effect of r 65(2) read together with s 8 of the Criminal Appeals Act is that an appellant must specify sufficient particulars of the error of law, or fact, or error going to jurisdiction, or the basis of an argument that a miscarriage of justice has arisen. Sufficient particulars of grounds of appeal are required to be provided to give notice to a respondent to an appeal of the nature of the arguments he or she must meet, if a respondent intends to oppose the appeal.
Leave of the court is required for each ground of appeal.[14] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[15]
[14] Criminal Appeals Act 2004 (WA) s 9(1).
[15] Criminal Appeals Act 2004 (WA) s 9(2).
To have a reasonable prospect of succeeding in an appeal against the decision of a magistrate, a ground must have a rational and logical prospect of succeeding or a real prospect of success.[16] If leave to appeal is refused on all grounds, the appeal is taken to be dismissed.[17]
[16] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
[17] Criminal Appeals Act 2004 (WA) s 9(3).
In circumstances where CD has not put forward any grounds of appeal, this court is unable to exercise its jurisdiction to grant leave to appeal because it is only conferred with jurisdiction to grant leave to appeal on a ground of appeal.
In the absence of the adoption of any grounds of appeal by CD, no leave on any ground of appeal can be granted and, pursuant to s 9(3) of the Criminal Appeals Act, his appeal is taken to be dismissed.
Even if this court is conferred with jurisdiction to hear an appeal in the absence of grounds of appeal by CD, I would dismiss his appeal.
This is because the content of the submissions filed by CD on 4 May 2021 raise complaints about matters that were not the subject of evidence before the presiding magistrate, or in any material that has been accepted into evidence in the appeal. The submissions also raise at least one matter that is not supported by a review of the transcript of the past proceedings in the Children's Court in PER/PC 477 of 2014.
CD states in his written submissions that he provided his consent to a protection order (special guardianship) in favour of the appellants on 23 November 2016, in respect of an application for a protection order (special guardianship) filed by the CEO on 18 November 2016. However, this application did not proceed and was replaced by an amended application filed by the CEO on 17 April 2018 for a protection order (until 18), which was replaced by a further amended application by the CEO on 21 January 2019 for a protection order (special guardianship) in favour of the appellants, with conditions requiring the appellants to facilitate contact between the child, SD, and her mother by making specified arrangements at specified places and times and to facilitate contact between the child, SD, and CD. The amended application filed on 21 January 2019 was subsequently replaced by the amended application filed on 21 November 2019 for a protection order (until 18).
In his written submissions, CD states that, on 25 January 2019, Braddock DCJ (sitting at the Children's Court in Perth) reviewed the matter and it was agreed that the child, SD, was to remain with the appellants, a contact plan was provided, and a protection order (special guardianship) order was to be signed and consented to. These contentions have no factual basis.
It is clear from a reading of the transcript of the hearing before Braddock DCJ on 25 January 2019 that no agreement about any of the matters contended by CD in his written submissions were either discussed or reached between any person who appeared at or was heard at the hearing.[18] It is also clear from the transcript that the purpose of the hearing on that day was to hear an application for an adjournment, by the CEO.
[18] Book of Documents, Tab 35, 676 ‑ 695.
At the time of the hearing on 25 January 2019, the amended application for a protection order (special guardianship), filed by the CEO on 21 January 2019, had been set down for trial later that month. At the hearing on 25 January 2019, the CEO was represented by counsel. CD and his mother, JD, were present, as was the mother of the child, ZS. ZS was also represented by counsel.
The transcript records that the CEO sought to vacate upcoming dates that had been set for a trial of the amended application for a protection order (special guardianship).[19] There was then discussion between her Honour and the parties about whether a legal representative for the child should be appointed, and whether a psychologist or intermediary should be appointed to prepare the child to engage in either family therapy and/or negotiations to resolve conflict between the appellants and the mother of the child, ZS, and to facilitate the re-establishment of a relationship between ZS and the child, SD. At the conclusion of the hearing, her Honour vacated the trial dates.
[19] Book of Documents, Tab 35, 677.
The remainder of the written submissions of CD raise issues in respect of care planning decisions made in the care plans that have been made by the CEO under subdiv 3 of div 5 of pt 4 of the Children and Community Services Act, and raise a complaint about the removal of the child, SD, from the care of the appellants.
No appeal lies to this court under pt 2 of the Criminal Appeals Act, in respect of these matters. This is because these are decisions made by the CEO by his or her officers or agents pursuant to s 24 of the Children and Community Services Act. They are not decisions made by the Children's Court. Only findings, orders and other decisions of the Children's Court may be the subject of an appeal under the Criminal Appeals Act.[20]
[20] Children's Court of Western Australia Act 1988 (WA) s 42(1), s 43(4).
In particular, CD complains in his written submissions about:
(a)the removal of SD from placement with the appellants, without notice;
(b)SD being placed with foster carers on 4 November 2019; and
(c)he and the appellants have had restricted contact with SD since she was removed from her placement with the appellants.
Each of these matters are matters that CD (and the appellants) may seek a review of, pursuant to subdiv 4 of div 5 of pt 4 of the Children and Community Services Act, as these are matters which relate to decisions about placement arrangements and decisions about contact between a child and a parent or other relatives of the child. Each of these matters are required to be the subject of a care plan made by the CEO under s 89 of the Children and Community Services Act.
Review proceedings of care plans are required to focus on the substantive merits of the most appropriate placement arrangement for a child, including care placement arrangements, and are the most appropriate avenue to review current placement arrangements of the child.[21]
[21] See the recent discussion in VB v Chief Executive Officer of the Department of Communities [2019] WASC 315 [87] ‑ [103], [151] ‑ [153] (Hill J); affirmed VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146, (Quinlan CJ, Murphy & Mitchell JJA).
A 'care plan' is defined in s 89(1) of the Children and Community Services Act as a written plan that identifies the needs of the child; outlines steps or measures to be taken in order to address those needs; and sets out decisions about the care of the child including, relevantly, decisions about placement arrangements, and decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life. However, the question of parental responsibility, and the duration of orders conferring parental responsibility, is not a matter to be dealt with by way of a care plan.[22] These are matters to be dealt with by a protection order.
[22] DH and Department for Child Protection [2011] WASAT 146 [43] (Chaney J).
As counsel for the CEO at the hearing of the appeal on 31 March 2021 stated, whilst this court cannot review care planning decisions made by the CEO in an appeal instituted under pt 2 of the Criminal Appeals Act, the appellants and CD have the right to make an application to the CEO for an initial review of a care planning decision pursuant to s 93(1) of the Children and Community Services Act, in accordance with the preconditions prescribed in s 93 for an initial review by a care plan review panel. Section 93 provides:
93. Initial review
(1)An application for the review of a care planning decision may be made to the CEO by ‑
(a)the child; or
(b)a parent of the child; or
(c)any carer of the child; or
(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
(2A)An application for the review of a decision under section 89(7) may be made to the CEO by the person given notice of the decision under section 89(8).
(2)An application under subsection (1) or (2A) ‑
(a)must be in writing; and
(b)must set out the grounds on which a review is sought.
(3)An application under subsection (1) must be made within ‑
(a)14 days after the day on which the applicant received a copy of a care plan or modification of a care plan setting out the relevant care planning decision; or
(b)any longer period that the CEO in special circumstances allows.
(4A)An application under subsection (2A) must be made within ‑
(a)14 days after the day on which the applicant received written notice of the decision under section 89(8); or
(b)any longer period that the CEO in special circumstances allows.
(4)The CEO must refer an application under subsection (1) or (2A), together with such other material as the CEO considers relevant, to the care plan review panel.
(5)On a referral under subsection (4) the care plan review panel must consider the application and other material (if any) and report to the CEO on its recommendations in respect of the application.
(6)The CEO, after considering the report of the care plan review panel and other information available to the CEO, must ‑
(a)confirm, vary or reverse the care planning decision or decision under section 89(7); or
(b)substitute another decision for the care planning decision or decision under section 89(7); or
(c)refer the matter back to the care plan review panel for further consideration and report.
(7)The CEO must give the applicant written notice of his or her decision under subsection (6) and written reasons for it.
(8)If an application is made under subsection (1), the decision that is the subject of the application continues to have effect pending the review unless the CEO otherwise directs.
If following that review, CD or the appellants are dissatisfied with the outcome of that review, pursuant to s 94 of the Children and Community Services Act, they each, as a person aggrieved by a decision made by the CEO under s 93(6)(a) or s 93(6)(b), have a right to apply to the State Administrative Tribunal for a review of the decision of the CEO on the initial review.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
2 JULY 2021