JT v Chief Executive Officer, Department for Child Protection & Family Support - [2014] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: JT -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION & FAMILY SUPPORT [2014] WASC 200

CORAM: COMMISSIONER SLEIGHT

HEARD: 28 & 29 MAY 2014

DELIVERED : 3 JUNE 2014

FILE NO/S: SJA 1003 of 2014

BETWEEN: JT
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION & FAMILY SUPPORT
First Respondent
A CHILD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :CC 481 of 2013

Catchwords:

Interim application by parent dismissed - Appeal - Child in provisional care - Failure of Chief Executive Officer to apply for an order as soon as practicable - whether protection proceedings invalid - Whether Chief Executive Officer required to return child to parent - Whether error of fact - Review of discretionary interim orders

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2004 (WA)
Interpretation Act 1984 (WA)
Mental Health Act 1996 (WA)

Result:

Appeal allowed
Interim order made for child to be returned to the appellant

Category: A

Representation:

Counsel:

Appellant:     In person
First Respondent          :     Ms C J Thatcher
Second Respondent      :     Mr S Walker

Solicitors:

Appellant:     Not applicable
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     Rajesh Saharan

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

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 8 CLR 199
Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57
Avsar v Binning [2009] WASCA 219
Beecham and Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Cash Converters Pty Ltd v Hila Pty Ltd (1993) WAR 471
Chief Executive Officer, Department for Child Protection v B (a child) [2008] WASC 174
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v Herring [No 3] [2011] WACA 265
Johnson v Cetin [2011] WASC 344
Michael v The State of Western Australia [2007] WASCA 100
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
O'Connell v The State of Western Australia [2012] WASCA 96
PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
S (a child) v Chief Executive Officer of the Department of Child Protection [2008] WASC 229
The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531

COMMISSIONER SLEIGHT: This is an appeal by a mother against an order made by her Honour Magistrate Crawford dismissing an application dated 14 November 2013 for an interim order that the mother's daughter be returned to her.
A brief history of the matter is as follows:
(1)On 12 October 2013 the child was taken into the provisional protection and care of the Chief Executive Officer (the CEO) of the Department for Child Protection & Family Support (the Department) pursuant to 37 of the Children and Community Services Act 2004 (WA) (the CCS Act).
(2)On 30 October 2013 the CEO made an application for a protection order (time‑limited). The application sought a protection order for a period 12 months. The return date on the application was 4 November 2013. On the return date the application was adjourned and has been further adjourned several times. As yet the substantive application has not been heard.
(3)On 14 November 2013 the mother filed an application for a variety of interim orders, including that the child be returned to the mother; and/or alternatively, the mother have more contact with the child.
(4)On 20 December 2013 the mother's application for an interim order was heard by the magistrate who dismissed the mother's application for return of the child and adjourned the application for increased contact. The mother appeals against the decision to dismiss her application for an interim order for the return of the child to the mother's care.

Right of appeal

The right of appeal is contained in s 42 of the Children's Court of Western Australia Act 1988 (WA) which provides a right of appeal against 'any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the [CCS Act]'.
The application by the mother for an interim order was an application under pt 5 of the CCS Act and therefore the decision of the magistrate may be the subject of an appeal. This is notwithstanding that the order made by the magistrate was on an application for an interim order. The right of an appeal given by s 42 of the Children's Court of Western Australia Act is not limited to the findings, orders or other decisions related to an application to finally determine protection proceedings: PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 [33]; S (a child) v Chief Executive Officer of the Department of Child Protection [2008] WASC 229 [15] ‑ [49]; Chief Executive Officer, Department for Child Protection v B (a child) [2008] WASC 174 [3]. The fact that an appeal lies on an interim order is recognition of the important issues that can arise on an interim basis in protection proceedings dealing with the potential impact of the protection and care of children and the rights of parents.
Section 41 of the Children's Court of Western Australia Act provides that the right of appeal is made under and subject to pt 2 of the Criminal Appeals Act 2004 (WA). This provision creates some awkwardness as pt 2 of the Criminal Appeals Act is by its provisions primarily concerned with appeals against criminal decisions made by a court of summary jurisdiction. Part 2 provides that the grounds of appeal may be made on one or more of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law of fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Pursuant to s 9 of the Criminal Appeals Act, leave to appeal is required in all cases. The appeal by the mother will need to come within the grounds of appeal as allowed under the Criminal Appeals Act (clearly the issue of sentencing does not arise in this case) and also leave will need to be obtained: S (a child) v CEO of the Department of Child Protection [22] ‑ [23].

Grounds of appeal

To explain the grounds of appeal in these proceedings, it is important to note that the mother is self‑represented. The appeal notice lodged by the mother is handwritten by her on a Form 20. The appeal notice contains numerous annotations which creates some confusion in identifying precisely the grounds of appeal. In the appeal proceedings the mother lodged four very lengthy affidavits. These affidavits contained some new evidence but were largely in the form of written submissions. A procedural order was made during the hearing of the appeal that the affidavits would be treated simply as written submissions and any factual material contained in the affidavits would be disregarded. From these written submissions, the oral submissions presented by the mother and from a written summary presented by the mother on the second day of the hearing, I believe that the grounds of appeal can be fairly reduced to the following:
(1)The learned magistrate made an error of fact or law in finding that an opinion expressed by a consultant psychiatrist Dr Stevens was for the limited purpose of ascertaining whether there was a psychiatric or other mental illness which would warrant an involuntary admission under the Mental Health Act 1996 (WA) and this assessment was of an entirely different nature to the issue of the risk to the child.
(2)A miscarriage of justice occurred because on the material before the learned magistrate she ought to have granted an interim order for an immediate return of the child to the mother.
(3)A miscarriage of justice occurred because of procedural unfairness. The unfairness being:
(a)a bias in favour of the CEO;
(b)the hearing took place without the mother and the representative of the child being served with an affidavit of [suppressed] sworn on 8 November 2013 and filed by the CEO in the proceedings;
(c)the learned magistrate failed to take into account the contents of an affidavit sworn and filed by the mother on 14 November 2013.
The appeal initially came before Corboy J for hearing on 27 March 2014 but, unfortunately, the appellant mother did not attend and the appeal was adjourned. At the hearing on 27 March 2014 Corboy J made orders joining the child as a second respondent and leave was given for the child to be represented by counsel. Counsel appearing for the child gave notice that there may be a need for the court to consider whether the substantive application for a protection order in the Children's Court was invalid as a result of the failure of the CEO to comply with a requirement under s 38 of the CCS Act to make an application within two working days after the child was taken into provisional protection and care pursuant to s 37 of the CCS Act. Further written submissions were invited on this issue and both the first respondent and the second respondent filed supplementary written submissions dealing with this issue.
On the hearing of the appeal this issue was fully agitated and, in order to bring the issue formally before the court, I invited the mother to make an application to amend her grounds of appeal by adding additional grounds. The mother made an application to add the following further grounds:
1.The learned magistrate acted outside her jurisdiction in that the substantive application was not filed within two working days of the child being taken into provisional protection and care.
2.Alternatively, there has been a miscarriage of justice in that the learned magistrate failed to consider the legal consequences of the failure of the Chief Executive Officer to make an application for a protection order within two working days of the child being taken into provisional protection and care.
Counsel for the child did not object to these further grounds of appeal being added. Counsel for the CEO conceded that no unfairness or prejudice could be identified by the additional grounds being added and acknowledged that the first respondent had an opportunity to present submissions concerning the issue. The additional grounds of appeal in my opinion raise very important issues both for this case and future cases. Given that the first respondent and second respondent had been given an opportunity to present submissions on the issue, I concluded no unfairness arises to the respondents and leave should be given for the amended grounds to be added to the notice of appeal. For the purposes of this judgment I will treat the additional grounds of appeal as grounds 4 and 5.

Material before the magistrate

The hearing dismissing the mother's application for an interim order took place on 20 December 2013. At the commencement of her oral reasons the learned magistrate identified the evidence before her as consisting of the following affidavits.
(1)An affidavit of [suppressed] sworn 30 October 2013 (filed as the original affidavit in support of the application by the CEO for a protection order);
(2)An affidavit of [suppressed] sworn 19 December 2013;
(3)An affidavit of the mother sworn 14 November 2013 and filed on 15 November 2013; and
(4)An affidavit of the mother sworn 17 December 2013 and filed on 18 December 2013.
However, there were two further affidavits filed in the proceedings; firstly an affidavit of [suppressed] (officer of the department) sworn on 8 November 2013 and filed on 11 November 2013 by the CEO; and secondly, an affidavit of the mother sworn and filed on 14 November 2013. It is clear from exchanges during the hearing before the magistrate and from her reasons that the magistrate took into account the contents of the affidavit of [suppressed] but there remains a question on this appeal as to whether the mother and the representative of the child had been served with this affidavit. It is not clear from the decision of whether the magistrate was aware of the affidavit of the mother sworn and filed on 14 November 2013. These issues will be revisited later in this decision in consideration of ground 3 of the appeal.
The magistrate did not take any oral evidence on the hearing of the application. The deponents to the affidavits were not called to give evidence and therefore no cross‑examination on the contents of the affidavits took place.

The evidence

(a) Uncontested background evidence

The uncontested evidence of the mother is that she is aged 35, is a [nationality suppressed] who has lived in Australia for approximately seven years. The child is an 8‑year‑old daughter. The father of the child works and lives outside Australia and has not materially participated in the care of the child. The mother is an intelligent woman and is well qualified. She has a number of university degrees in [nationality suppressed]. She completed a master's degree in Human Resources from the Curtin University of Technology in Western Australia in 2010.

(b) Affidavits filed by CEO

Affidavit of [suppressed] sworn 30 October 2013

The first affidavit filed by the CEO is an affidavit of [suppressed] sworn 30 October 2013. The affidavit deposed to the following:
(1)On 18 September 2013 the police attended the home of the mother after she had contacted the police requesting assistance due to being 'itchy all over' and not being able to sleep. At the time the mother was living in a high rise apartment. After attending the apartment the police contacted the Department due to concerns about the home environment. The police reported that the premises had a significant amount of rubbish on the floor, the contents of the fridge were old and expired, the police observed the child sleeping on the mattress which the mother complained was causing itchiness and the police observed cockroaches in the cupboard. The police also reported that the mother stated that she had not allowed herself or the child to shower in the apartment for several months due to the water making her sick. The police contacted an ambulance service. Paramedics attended the premises but provided no medical treatment.
(2)On 20 September 2013 the Inner City Mental Health Services (ICMHS) contacted the Department and reported that they had visited the premises occupied by the mother on 19 September 2013. ICMHS reported that the mother presented with entrenched delusions that the water in her home was having an adverse effect on herself and the child. ICMHS reported that the mother was not prepared to engage with the service.
(3)On 27 September 2013 the Dean of a private junior school attended by the child stated his concerns to the Department of the mother's mental health. The Dean reported that the mother believed that people were after her, the air conditioning in her car had been contaminated and that she and the child were sleeping in a hotel because there was something in the bed at their apartment which was causing a rash to the mother. The Dean raised concerns with the Department that the mother was threatening to disappear and was using other Christian names for herself and the child. The Dean reported a meeting with the mother outside the school office where the mother was on the ground in a foetal position while the child was in the car.
(4)On 1 October 2013 ICMHS contacted the mother but the mother was not prepared to discuss where she and the child were residing other than to report that they were residing in a hotel.
(5)On 3 October 2013 the Department was contacted by a real estate agent who expressed concern about the child's care and wellbeing. The agent reported that the apartment occupied by the mother and the child had an awful smell, he had observed soiled nappies, and observed food and dirty clothes everywhere. Annexed to the affidavit was a series of photographs of the interior of the premises taken by the agent. The photographs are very small and of poor quality, although one can discern from the photographs some untidiness.
(6)On 9 October 2013 the mother agreed to meet with two officers of the Department at a café. The mother informed the departmental officers that she and the child were now living in an apartment closer to the centre of Perth. The mother explained that she wished to return to [nationality suppressed] as she did not have support in Australia. The mother also reported that she did not feel safe in her new apartment as she had observed two men following them on two separate occasions. The departmental officers noted that the child presented as 'happy, clean and well kept'.
(7)On 11 October 2013 the mother reported to departmental officers that she had been to police to complain about a person who had allegedly entered her apartment on 6 October 2013 and spoke to the child. Again at this meeting the departmental officers noted that the child presented as 'happy, clean and well kept'.
(8)On 11 October 2013 the Department was contacted by the Princess Margaret Hospital (PMH) Child Protection Unit. The person from the unit reported that the mother and child had attended the emergency unit and the unit was concerned regarding the mother's presentation and information she was providing. An email from the unit to the Department annexed to the affidavit reported as follows:
Mother has reported that on Sunday (time unknown) she went to take the rubbish out but then decided to go for a walk leaving [the child] at home by herself for approx 1hr. PMH ED have been then informed that during this period of time whilst [the child] was alone a man who is not known to the family has entered the home on six occasions. [The child] has made various comments about how this man accessed the house initially indicating she didn't know, then mentioning possibly seeing a swipe card and then her letting him in on one occasion. It is reported that on each occasion when the man entered the home that he searched a room and has sprayed some chemical. It was further reported that mother left her iPhone on recording the front door but that this man has managed to access Mother's phone by using her passcode and deleting this footage.
The email by PMH to the Department further stated that the child when examined appeared quite well, is articulate and healthy in appearance.
(9)On 12 October 2013 at about 1.00am a doctor at PMH notified the Department that the mother of the child had returned to PMH. The mother told the doctor that she had returned to the hospital with the child as she was concerned the child may have some sort of toxic poisoning after returning to the apartment earlier that day. The doctor stated that he believed that the mother appeared to be having delusional thoughts/suffering with psychosis and as such he had concerns for the child's wellbeing. The doctor reported that the child presented as clean and appropriately dressed. The doctor also reported that the mother alleged the child had been sexually assaulted during one of the alleged break‑ins.
(10)On 12 October 2013 the ICMHS assessed the mother and determined that she required assessment by a psychiatrist. They sought to persuade her to attend the clinic on 14 October 2013 for assessment but the mother declined stating that she did not believe that there was anything wrong with her. It was explained to the mother that under the Mental Health Act she could be taken to hospital for assessment involuntarily.
(11)On the same date officers from the Department spoke to the mother of the need for the child to be cared for whilst she was placed in hospital for assessment. It was explained to her that as she could not nominate someone to care for the child then the child may need to be taken into care under s 37 of the CCS Act. The mother agreed to voluntarily attend the mental health clinic on Monday 14 October 2014 for assessment. A worker from ICMHS expressed to the Department the opinion that the child was spending so much time alone and feeling neglected that she was 'feeding' into her mother's delusions. It was determined by the Department that concerns for the child remained and she was taken into care purportedly pursuant to s 37 of the CCS Act.
(12)On 14 October 2013 the mother attended ICMHS and was subsequently transported to the Bentley Hospital for assessment and treatment. She was discharged from the Bentley Hospital on 17 October 2013. On discharge the Department was supplied with a letter from Dr David Stevens, Consultant Psychiatrist. The letter stated as follows:
I saw [the mother] at the Bentley Hospital in my capacity as a Consultant Psychiatrist following her referral for assessment. We assessed her over a period of two days in the hospital environment which allowed a thorough clinical review. She was open with us in discussing events leading to admission including events relating to the wellbeing of her daughter. As you are aware, we also liaised with a CPFS representative and took the collateral information into account in assessing [the mother's] mental state.
Our clinical impression is that [the mother] is a concerned mother under stress. I could find no evidence at this time of a psychotic or other mental illness that would lead to functional impairment. I also consider her to be of very low risk to harm herself or others in the community. In my opinion there were insufficient grounds for involuntary admission and that her care was best provided in the community. Further, treatment with medications is unlikely to be helpful for [the mother] at this stage.
We have discharged [the mother] from the inpatient unit today and are referring her for follow up outpatient support at Inner City Mental Health Service. This is the community mental health service that covers her geographic area. We will recommend that they see [the mother] to support her and monitor her mental state during this stressful time. [The mother] is aware of this plan and is grateful for this support.
(13)On 22 October 2013 officers of the Department met with the mother and explained to her the concerns they had as to her mental health and the impact it might be having on her care for the child. The Department requested the mother to meet with the ICMHS as recommended in the discharge summary and the mother agreed.
(14)On 22 October 2013 the Department was contacted by ICMHS and informed that the mother had notified the service that she was no longer willing to engage with them.
(15)On 24 October 2013 a contact visit was arranged between the mother and the child under the supervision of an officer of the Department, the contact occurred for about 30 minutes. The mother expressed concern to the child and the departmental officer in regards to the child's teeth being unclean and the child having red rashes on her face. The Department officer could not observe any of these features.
(16)On 28 October 2013 the mother attended a signs of safety meeting with officers of the Department and officers of CMHS. The mother was informed that the Department had to make an informed assessment about whether the mother had the capacity to safely care for the child and that the mother would not expose the child to unnecessary or invasive tests. The mother agreed to work with the Department and CMHS and attend her psychiatric assessment for the treatment plan. She also agreed to a referral to a support service and parenting capacity development through a service like Wanslea. The officer of the Department also explained to the mother that the Department would need to see a period of engagement with the mental health service and family support services to assess reunification between the mother and the child.
(17)The affidavit concluded by a summary which included the following :
I am also concerned that [the mother] is not currently able to demonstrate insight into the risk of harm to [the child] arising from living in a chaotic and fear filled environment, and consequent lack of stable housing. I have also not been able to establish that [the child] has been provided with adequate supervision and care while in [the mother's] care, although [the mother] herself acknowledges that she has left [the child] alone without warning. Despite believing someone has been 'breaking into our house', [the mother] has not recognised the potential harm to [the child] beyond the risk of chemical poisoning, demonstrating very limited awareness of more common risks to a young girl.[49]
(18)The affidavit also listed the basis for the application which was summarised as follows:
The Department believes that [the child] is vulnerable and at considerable risk of further psychological and emotional harm if she remains in her mother's care while her mother continues to present with symptoms of delusional paranoia, and at a protection order is necessary to ensure the safety and well‑being.

Affidavit of [suppressed] sworn on 8 November 2013

The second affidavit filed by the CEO, being the affidavit of [suppressed] sworn on 8 November 2013, deposes to the history of the matter, including the following:
(1)The Department arranged a telephone contact between the mother and the child on 15 October 2013 and 22 October 2013.
(2)On 24 October 2013, the Department received from the father of the child emails between the father and the mother. [Suppressed] in her affidavit states that these emails suggest that the mother characterised the Department as having 'snatched' the child.
(3)Supervised contact occurred on 24 October 2013. Prior to the meeting, the mother was instructed that there was to be no whispering and that certain topics were inappropriate. During the meeting, the mother had to be reminded about the prohibition of whispering and discussing with the child when she was likely to be returned and questions about contact with her father. At the end of the meeting, the mother informed officers of the Department that she would not leave the meeting without the child. This led to a stand‑off which was not resolved until sometime after 5.30 pm.
(4)On 31 October 2013, the Department received from PMH an inpatient discharge summary relating to the mother's attendance at the hospital on 12 October 2012. The discharge summary included a note that stated that the child had disclosed to nursing staff the following:
Mummy leaves me at home all day by myself, sometimes I don't eat for two days. Mummy works at Red Rooster. Sometimes, when I'm allowed to shower, it's cold but that's only a few times a week. We don't ever wash our clothes. My address isn't the same as the sticker.
(5)On 4 November 2013, the mother attended supervised contact at the Fremantle office of the Department. At the end of the contact, the mother physically restrained the child and would not let her go. Over a period of two hours, staff members attempted to intervene and persuade the mother to let the child go. At one point, police were called but before their attendance, the mother released the child. Annexed to the affidavit is a report from an officer of the Department, [suppressed], and a report of a departmental psychologist, [suppressed], concerning this contact visit. The report of [suppressed] indicates that in order to persuade the mother to release the child, [suppressed] informed the mother that if she continued to behave in this manner then the next step was for the child to be placed in the CEO's care until she was 18. The failure of the mother to release the daughter was characterised by [suppressed] in her report in the following way:
It appeared to me, while the mother was lucid, she appeared to be unable to reason, rationalise, or to think through the implications, her conversation remained fixated on that they needed to go home together and then when would contact occur again. She would not entertain any other conversation. I interpreted this as the mother being unable to move past or rise above her own emotional distress or needs for the needs of her daughter. Her delusional thinking has been raise [sic] in the past, I would welcome a discussion with City Mental health psychiatry to explore what other psychiatric factors may be interplaying that limits the mother's ability to entertain other thoughts or reasoning.
Throughout this situation it remains clear that the mother and daughter share a close, warm attachment. The daughter's mature presentation, (though also acknowledging parentified traits) shows that the mother has laid some good psychological foundations for the daughter. In this regard, contact needs continue, however so as prevent a similar situation occurring, I would suggest to reduce this to phone contact until the mother can demonstrate some change. Such as engaging with City Mental Health.
(6)Annexed to the affidavit of [suppressed] is a copy of a series of emails between the child's father and the mother; and a copy of a written statement obtained from the father. The emails reveal that on 13 October 2013 (a day after the child was taken into the care of the CEO) the mother wrote to the father who was in Kazakhstan complaining that the Department had 'snatched' the child from her and stressing that the child was only 7 and the mother did not know of her whereabouts and with whom she was staying. The mother sought the assistance of the father. The tone of the emails from the mother became vitriolic when the father indicated he was unable to do anything. The written statement of the father indicated that the father supported the Department's intervention. The statement indicated that the father and the mother had been married in early 2006 in [nationality suppressed] and that the father brought the mother to Australia in 2006 for the birth of their daughter. The father separated from the mother in late 2007.

Affidavit of [suppressed] sworn 19 December 2013

A third affidavit was filed by the CEO, being an affidavit of [suppressed] sworn and filed on 19 December 2013. The affidavit deposed to the following:
(1)On 19 November 2013, the mother attended supervised contact with the child and had to be reminded several times not to whisper. (The affidavit otherwise did not complain of any incident at the contact visit).
(2)On 20 November 2013, the father arrived in Perth and had supervised contact on 21 November 2013 and unsupervised contact on 28 November 2013.
(3)On 26 November 2013, the mother attended supervised contact with the child. During the contact, the mother became angry that the daughter was wearing thigh‑length shorts and T‑shirt, which the mother considered inappropriate for the child's age.
(4)On 6 December 2013, a contact meeting was arranged. The child arrived 10 minutes late and the mother 38 minutes late. The child presented some books from school, but the mother threw these on the ground.
(5)The mother failed to attend a contact meeting on 13 December 2013. A further contact meeting was arranged for 19 December 2013.
The affidavit concluded by stating:
The Department is still of the view that [the mother] is not currently able to demonstrate insight in the risk of harm to [the child] arising from living in a chaotic fear filled environment, and the consequent lack of stable housing. [The mother] continues to believe that she has been poisoned and harmed by external persons including Mr Chester.
It is the opinion of the Department that a rigorous psychiatric assessment be completed for [the mother] for the purpose of receiving a discreet assessment of [the mother's] mental health functioning and subsequently her parenting capacity.

(c) Affidavits of the mother

Affidavit of mother sworn and filed on 14 November 2013

The first affidavit filed by the mother was sworn and filed on 14 November 2013. In this first affidavit the mother deposed that:
(1)The mother confirmed that she had attended PMH and complained about a strange man entering her apartment and spraying something around the apartment. The mother said that these allegations were based upon what she had been told by her daughter as the mother was out of the apartment at the time. As a result of raising this matter the mother was informed by the Department that they believed that she was suffering from delusions and mental disorder. On 12 October 2013 the mother was handed a letter (which was annexed to the affidavit) dated 12 October 2013. The letter stated that as a result of an assessment by authorised officers of the Department it was believed that there was an immediate and substantial risk to the wellbeing of the child. The letter further stated as follows:
An application for a Protection Order may be made to the Children's Court within two working days. The first court appearance is likely to be held within three working days of the application being filed in court. You will be provided with formal notice of this, advising you of the date, time and addressed to you to attend. Any decision not to proceed with the application for a Protection Order and return your child to you will be discussed with you in the next two working days. (emphasis added)
The letter went on to explain that until hearing of an application before the court the child would be in the care of the CEO under s 37 of the CCS Act. The letter also explained that if an application was filed that the mother would have the right to apply to the court for interim orders.
(2)The mother deposed that she was not allowed to speak to her daughter on 12 October 2013 once the departmental officers had informed her they intended to take the child into the care of the CEO. This caused the mother to be very upset.
(3)The mother stated that she agreed to the psychiatric assessment proposed in order to get her daughter back.
(4)On 16 October 2013 (by which time the mother was in the Bentley Hospital) the Department permitted the mother to speak to the daughter on the telephone. The telephone conversation lasted 30 minutes.
(5)After the mother was discharged from the hospital on 17 October 2013, she made several phone calls to the Department hoping to see her daughter. She was told that [suppressed] would phone back but no return calls were made. She made further telephone calls to the Department but on each occasion was told that [suppressed] was busy or was at meetings.
(6)On 25 October 2013 the contact meeting between the mother and the child took place at the Department's offices. The meeting lasted approximately 30 minutes. The mother acknowledged she found it very difficult to say goodbye at the end of the meeting.
(7)On 31 October 2013 the mother received an email from the Department advising that a meeting with the daughter would take place on 1 November 2013 at 4.00 pm. The mother requested that the meeting take place near the City. The reason for this request was that she had a 3.00 pm appointment with the duty lawyer at the Children's Court, her car had broken down and she would be unable to get to Fremantle, where the Department proposed to conduct the meeting, in time using public transport. The request was contained in emails, copies of which were annexed to the affidavit. [suppressed] refused to agree to the change of the location of the meeting and as a result the mother was unable to attend.
(8)On 4 November 2013 a supervised contact meeting was arranged between the mother and the daughter which lasted almost two hours. The mother acknowledged that she and her daughter found it very difficult to separate at the end of the meeting and they were both crying.
(9)A further supervised contact meeting was meant to take place on 11 November 2013. However the mother was contacted by the Department and the contact meeting on 11 November 2013 was cancelled because the Department officer meant to supervise the meeting was ill.

The second affidavit by the mother sworn on 14 November 2013 and filed on 15 November 2013

A second affidavit was sworn by the mother on 14 November 2013 (a typed affidavit) and filed at the Children's Court on 15 November 2013. This second affidavit responded to various matters raised in the affidavit of [suppressed] dated 30 October 2013. In the affidavit the mother agreed that she had called the police in relation to issues concerning her apartment. Further she agreed that she complained to the Dean of the primary school of the child concerning her vehicle. She admitted that in this discussion she became emotional but she disagreed that she was on the ground in a foetal position. She also agreed that she had raised an allegation at PMH concerning an allegation that strangers had entered her new apartment. She stated that she also requested the doctors to conduct urine tests, routine blood tests and skin reaction tests to determine whether the daughter had suffered any harm.
Annexed to both affidavits of the mother are copies of a Bentley Hospital inpatient discharge letter. I will refer to the contents of this more fully later in this decision. It provides details of the purpose of the assessment of the mother when she was admitted into the hospital on the 14 October 2013, the assessments made and the conclusions from such assessments.

The third affidavit of the mother sworn on 17 December 2013

The third affidavit filed by the mother sworn on 17 December 2013 largely was in the form of submissions. Annexed to the affidavit were a number of character references which attested to the mother being in the past a very dedicated and caring mother. The affidavit also annexed a copy of a residential tenancy agreement which confirmed that the mother had a lease of an apartment for a period up to 3 April 2014.

Nature of appeal

An appeal under pt 2 of the Criminal Appeals Act is in the nature of a rehearing (Criminal Procedure Rules 2004 (WA) r 64). The appeal court must decide an appeal on the evidence and material that was before the lower court (Criminal Appeals Act s 39(1)), although the appeal court may admit other evidence (Criminal Appeals Act s 40(e)).
While, by virtue of these rules, the appeal to the Supreme Court is by way of a rehearing, the task of the court is nonetheless to discern error: Avsar v Binning [2009] WASCA 219 [37]. In cases involving a rehearing the judgment of the appellate court, while respecting the judgment of the court of trial, must not shrink from overturning the judgment where its independent assessment shows that it is required for the judgment to be overturned: Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531, 551; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [125] ‑ [128]; PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [147]. In the process of reviewing a decision the appellate court is not excused from the task of weighing conflicting evidence and drawing its own conclusions: Fox v Percy [127]. These principles are applicable to an appellate court reviewing factual findings and conclusions after trial. However, in this matter, the magistrate was not in the position of a trial judge or magistrate and, as will be discussed later in this decision, was not required to determine conflicts in the evidence. Instead, the role involved an examination of the evidence presented by the CEO and the mother and then to make a judgment (that is, make a discretionary decision) as to whether it was appropriate to grant the interim orders sought. The principles to be followed by an appellate court when reviewing a discretionary judgment are set out in the leading authority of House v The King [1936] HCA 40; (1936) 55 CLR 499 (Dixon, Evert & McTiernan JJ), as follows:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principle. It is not enough that the judges composing the appellate court consider, if they had been in the position of the primary judge, they would have taken a different view. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In summary, these principles mean that an appellate court should not overturn a discretionary judgment unless the lower court has acted on an error in principle (which is the basis of grounds 4 and 5 of the appeal), an error in fact (which is the basis of ground 1 of the appeal) or the decision is plainly unjust (which is the basis of grounds 2 and 3 of the appeal).

Magistrate's reasons

The magistrate in her reasons acknowledged that the hearing was effectively conducted on the evidence as set out in the affidavit material which was untested. She acknowledged that this placed the court in a difficult position. The magistrate then went on to state as follows:
So on the affidavit material I have said that prima facie there is a foundation for concern about the likelihood of harm to the child. For example, evidence about the mother's behaviour with respect to the previous accommodation and, in summary, that appears to amount to a smell leading to moving the child and herself around temporary accommodation for, it appears, approximately two months while she arranged alternative accommodation which she and the child moved into prior to the child being apprehended.
Secondly, in terms of giving examples of what is raised in the affidavits which is part of the foundation for concern about the likelihood of harm of the type relied upon by the department; that includes information suggesting delusional beliefs about water being poisoned with chemicals and adversely impacting on the child's diet, hygiene and feelings of safety in domestic surroundings, concern communicated about delusional beliefs and odd behaviour emanating from the school and Princess Margaret Hospital.
In relation to the latter, for example, the child protection unit there reporting mother requesting that the child be chemically tested on 11 October and on 12 October the mother reporting to Princess Margaret Hospital the child had some sort of toxic poisoning. Now, amongst the evidential material there is a detailed report about contact on 1 November 2013; that is a report prepared by a family resource employee [suppressed]; it is dated 8 November 2013.
Now, no dispute was evident when that particular - no dispute by the mother was evident as to the content of that report when the matter was raised this afternoon; rather, the behaviour on the particular occasion was justified on the basis that the mother had not seen the child, she had been in Bentley for psychiatric assessment and had not had the opportunity to see the child. As a human being and as a parent she was emotional. I note that on the basis of that report in a very crude summary it appears that the mother held onto the child at the conclusion of contact and continued to do so for nearly two hours so that the child could not be returned in the usual way to the foster carer.
The situation necessitated the police being called and I refer, in particular, to paragraph 20 of this report which reads:
'[Suppressed] attempted to reason with [the mother] without success. [The mother] became emotional and began to cry. [The child] - - -'
So that is [the child].
'- - - then also started crying. They clung to each other. [The child] did not speak at all, [the mother] kept asking when she could see her daughter again. Unfortunately, the staff present did not have that information; however, [suppressed] noted the details of [the mother's] email address and promised she would be notified the next day. [the mother] repeatedly stated, "I will come to see her tomorrow." As we could not confirm her request she continued sitting with [the child] in her arms.'
Now, that is merely one paragraph, but it demonstrates, if true - and as I -have said it is not evident that there is any dispute about the content of the report - if true, it demonstrates that [the child] became upset in that situation and, as I have indicated, the report refers to the police having to be called. Now, irrespective of Dr Stevens' assessment which is annexed to the affidavit of the mother filed 18 December 2013 - it is annexure A. It is a report Dr Stevens dated 17 October 2013. At paragraph 2 it reads:
'Our clinical impression is that [the mother] is a concerned mother under stress. I could find no evidence at this time of a psychotic or other mental illness that would lead to functional impairment. I also consider her to be of risk to harm herself or others in the community. In my opinion there are insufficient grounds for involuntary admission and that her care was best provided in the community. Further treatment with medications is unlikely to be helpful for [the mother] at this stage.'
It goes on to say:
'We have discharged [the mother] from the inpatient unit today and are referring her for follow‑up outpatient support Inner City Mental Health Service. We will recommend they see [the mother] to support her and monitor her mental state during the stressful time.'
Now, it is clear from paragraph 2 that the purpose of the assessment by Dr Stevens was to ascertain whether there was a psychotic or other mental illness that would warrant involuntary admission and in relation to that he assessed that the answer was no. I note that his opinion about whether there is a psychotic or other mental illness is that there is no psychotic or other mental illness that would lead to functional impairment.
I am not satisfied that his assessment is that there is no mental illness; rather, there is no psychotic or other mental illness that would justify involuntary admission rather than care in the community and, further, he effectively says no mental illness which leads to functional impairment. Now, the mother heavily relies upon that; however, I note, firstly, that the evidence includes a range of behaviours which have been reported by different individuals of institutions including Princess Margaret Hospital, including the school, ‑ including officers of the Department of Child Protection and that the court is required to assess, effectively, whether there is evidence justifying the concern of the department that the child has suffered, or is likely.to suffer harm by emotional abuse and/or psychological abuse and that the child's parents have not protected or are unlikely or unable to protect the child from harm or further harm of that kind.
So the assessment the court has to make is of an entirely different nature; an entirely different character than the assessment which Dr Stevens was required to make. Now, I consider on the basis of the evidence adduced through affidavits sworn on behalf of the department that there is evidence regarding the behaviour of the mother which justifies the concern that the child is likely to suffer harm as a result of emotional and/or psychological abuse and that the mother is unlikely or unable to protect the child from harm at the current time and that is based upon the evidence of the mother's behaviour from various sources which is contained in the departmental affidavits and I include there the emails as between the mother and the father.
If I am wrong about that then in the alternative I consider that there is a significant risk of emotional and/or psychological harm which may be minimised by supervision and support to the mother by the department and other agencies; however, I have no confidence that the mother would cooperate with the department were the child to be placed with her. It is clear from the affidavit material that the mother has repeatedly behaved in a way that puts her own needs, her own concerns first and there is also evidence of a refusal to cooperate or engage with the department.
Now, the mother says she has made many efforts to contact the department without success. I note from the most recent affidavit filed by the department that was filed yesterday that there was one contact missed and on another occasion the mother was 40 minutes late and there have been other times when the department has tried to contact her to no avail. At this stage, what needs to happen, what is in the best interests of [the child] … is that [the mother] works with the department and that includes observing the rules of contact, talking about issues of concern to her outside the contact environment.
If [the mother] is concerned about the frequency of contact or what the child is wearing then those are issues which, quite properly, [the mother] should raise, but outside the contact environment raise with the case officer so as to try to discuss the matter and resolve it, but not in the child's presence and I consider also what needs to happen is [the mother] needs to cooperate with the department in an assessment by clinical psychologist of [the mother] and her capacity to put the child's interests and needs first and, if appropriate, contact be increased.

The magistrate in her decision went on to acknowledge that, in ascertaining the best interests of the child, the court should take into account cultural factors (see s 8(1)(j) of the CCS Act) and that this had been raised by the mother and counsel for the child in their submissions. The magistrate recommended that the Department investigate the issue further with the cooperation of the mother.

Grounds 4 and 5

I believe that it is appropriate that I deal with the additional grounds 4 and 5 first. It is not in dispute in this matter the CEO failed to lodge an application for a protection order within two working days of the child being taken into provisional protection and care. Grounds 4 and 5 can be dealt with together because they both raise what are the legal consequences of the CEO failing to lodge an application within two working days of the child being taken into provisional protection and care.
During the course of the hearing of the appeal there emerged two primary issues; firstly, whether a failure of the CEO to lodge an application for a protection order within two working days after the child was taken into provisional protection and care invalidates the substantive application lodged by the CEO on 30 October 2013 and thereby invalidates the proceedings of the hearing of the application made by the mother for an interim order for return of the child (ground 4); and secondly, if the delay by the CEO does not invalidate the substantive application, whether the failure of the CEO to make a substantive application within two working days has the effect that the CEO was required to release the child from the CEO's provisional care and protection at the expiration of two working days and return the child to the mother (ground 5).
To decide these issues it is necessary to consider the provisions of the CCS Act and the obligations that fall on the CEO.
The CCS Act provides for a number of different procedures to deal with the provisional protection and care of children. Firstly, s 35 provides that an authorised officer, who believes that a child is in need of protection, may apply to the court for a provisional protection and care warrant. This application is made under s 120 which provides for a procedure for the making of an application in an emergency by various forms including by telephone. Secondly, s 37(2) provides that an authorised officer or a police officer may, at any time, take a child into provisional protection and care without a warrant, if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing. Thirdly, s 44 provides that a substantive application can be made by the CEO for a protection order. There are four types of protection orders that can be applied for. One type is a time‑limited protection order. That is the type of order sought by the CEO in the substantive proceedings in the Children's Court in this matter. Once substantive proceedings are commenced, the CEO can apply for a provisional protection and care order by way of an interim order under s 133(2).
The focus in this matter is on a provisional protection and care seizure of a child under s 37 of the CCS Act. If the power under s 37 to take a child into provisional protection and care is exercised by a police officer then the police officer must notify the CEO as soon as practicable (s 37 (4)).
The wording of CCS Act suggests that a protection and care seizure of a child under s 37 is meant to be a temporary arrangement by the use of the word 'provisional'. Other provisions of the CSS Act reinforce this. Section 38(2) provides in relation to a child taken under s 37 relevantly as follows:
(2)If the child is not already the subject of protection proceedings when the child is taken into provisional protection and care and the CEO decides not to make a protection application or other application under this Part in respect of the child, then ... the CEO must ensure that, as soon as practicable after the child is taken into provisional protection and care, the child is returned to or placed in the care of -
(a)a parent of the child;
Section 38(4) requires that where the CEO decides to make an application for a protection order the CEO must in circumstances of the present case make such an application not more than two working days after the child is taken into provisional protection and care under s 37 (a similar provision exists where the child is taken into provisional protection and care under a warrant issued under s 35). Section 38(4) provides as follows:
If the CEO decides to make a protection application or other application under this Part in respect of the child, the CEO must make the application -
(a)if the child is taken into provisional protection and care in a prescribed area of the State, as soon as practicable after the child is taken into provisional protection and care; or
(b)otherwise, as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care. (emphasis added)
In this matter the child was not taken into provisional protection and care in a prescribed area and therefore s 38(4)(a) has no application.
Submissions were presented by counsel for the first and second respondents as to the effect of the word 'must' in s 38(4). Counsel for the CEO submitted that the meaning of the word 'must' ought to be given a meaning something less than the word 'shall' which has a prescribed meaning in the Interpretation Act 1984 (WA). Section 56(2) of the Interpretation Act provides that where in a written law the word 'shall' is used in conferring a function the word shall be interpreted to mean that the function conferred 'must' be performed. I see no reason to interpret the word 'must' in s 38 (4) of the CCS Act to mean anything less than the word 'shall' and that the obligation which falls on the CEO under the subsection is obligatory. In my opinion, the use of the word 'must' if anything places greater emphasis on the obligatory nature of the function of the CEO.
Counsel for the CEO also contended that the subsection should not be interpreted as placing an obligatory obligation on the CEO because, in practical terms, in many instances it would be impossible to comply with a requirement to file an application for a protection order within two working days. It should be noted that the CEO may be prevented from making an application within two working days if the child is taken into protection and care by a police officer and the police officer does not notify the CEO early enough for the CEO to make an application for a protection order within the prescribed two working days. I reject the contention that in many instances it would be impossible to comply with the two working day requirement. This is a matter of resources and if Department is under‑resourced then that is not a reason to place an interpretation on the legislation which is contrary to its plain meaning. Likewise, the notification by a police officer to the CEO of the exercise of a power under s 37 is a simple task and one that normally would not cause a delay in making an application to the court within two working days.
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. Accordingly, on ground 4 I give leave to appeal but dismissed the appeal.
However, it is a different issue to consider what are the consequences of the power of the CEO under s 37 to retain the care of the child if the CEO does not make an application for a protection order within two working days.
Section 29(3) of the CCS Act relevantly 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) or the court makes an interim order to place the child back with the parent or another person.
The power vested in the CEO of provisionally taking a parent's child under s 37, that is without applying to the court for a warrant, is an extreme power, to be exercised only in cases of significant risk. It is not a power that ought to be exercised without great care and consideration. Amongst the considerations the legislation recognises are those contained in s 9(a) and (b) which provide a bias for the wellbeing of children to be protected by placement with their parents and the Department providing support to the parents.
What consequences flow from a failure of the CEO to apply to the court for a protection order within the time frame prescribed by s 38(2) involves a question of statutory construction. A primary object of statutory construction is to construe the relevant provisions so that they are consistent with the language and purpose of all the provisions of the statute. The meaning of the provisions must be determined by reference to the language of the instrument viewed as a whole. The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus the process of construction must always begin by examining the context of the provision that is being construed: s 18 of the Interpretation Act; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 ‑ 382.
The CCS Act in pt 2 sets out the objects and principles of the legislation. Section 6, s 8 and s 9 provide as follows:
6.Objects
The objects of this Act are -
(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
(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.
...
8.Determining the best interests of a child
(1)In determining for the purposes of this Act what is in a child's best interests the following matters must be taken into account -
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(g)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 -
(i)the child's parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child's life;
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i)the child's age, maturity, sex, sexuality, background and language;
(j)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
(k)the child's physical, emotional, intellectual, spiritual, developmental and educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child's circumstances.
(2)Subsection (1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.
9.Principles to be observed
In the administration of this Act the following principles must be observed -
(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b)the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
(c)the principle that every child should be cared for and protected from harm;
(d)the principle that every child should live in an environment free from violence;
(e)the principle that every child should have stable, secure and safe relationships and living arrangements;
(f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;
(g)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(ha)the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long term stability for the child;
(h)the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;
(i)the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;
(j)the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision making processes under this Act that are likely to have a significant impact on the child's life;
(k)the principle that a child's parents and any other people who are significant in the child's life should be given adequate information, in a manner and language that they can understand, about -
(i)decision making processes under this Act that are likely to have a significant impact on the child's life; and
(ii)the outcome of any decision about the child, including an explanation of the reasons for the decision; and
(iii)any relevant complaint or review procedures;
(l)the principle set out in section 10(1).
Section 46 of the CCS Act provides that on a protection application, the Court must consider not making an order. The section provides that the court must not make a protection order in respect of a child unless the court is satisfied that making the order would be better for the child then making no order at all.
It is helpful in considering the interpretation of s 38 to consider the Second Reading Speech relating to the introduction of the Bill which later became the CCS Act. The Minister said the following (see Hansard pages 14,244b ‑ 14,247a, 4 December 2013):
The Bill provides a new way of responding to the complex social issues that have emerged in recent decades. The legislation provides the framework to improve best practice that is evidenced-based. There is overwhelming research that supports the view that children's well‑being is best maintained in their families and communities, and that the experience of being 'in care' can result in its own set of negative consequences. It is also evident from research that there is clearly a need for investment in services to support families at risk of child abuse or neglect before they become involved in the child protection system.
...
Part 4 deals with the protection and care of children and is the largest part in the Bill. A critical aspect of child protection is the criteria used to determine when a child is in need of protection. A major reform in the Bill is to focus on significant harm to the child, and the parents' ability or willingness to protect the child from harm.
The Bill achieves a balance between statutory child protection powers for authorised officers and adequate safeguards against the misuse of those powers. The Bill requires a warrant from the Children's Court before a child can be taken into the provisional protection and care of the CEO, except in emergency situations when the child is at immediate and substantial risk. This is a major improvement on current practice under the Child Welfare Act, which provides for children who are in need of protection to be apprehended into the care of the Department without any prior approval from the court. The Bill emphasises that the removal of the child from the family is such a critical decision in a child's life that it requires the court sanction.
Consistent with this Second Reading Speech I conclude that the legislation places a heavy emphasis upon the requirement of the CEO to bring an application before the court as soon as practicable after a child is taken into care under s 37 of the CCS Act. In my opinion this recognises the principle that I earlier stated that to take a person's child away from a parent is a very serious matter.
In my opinion the intention of the legislature is that where a child is taken into provisional protection and care the CEO is under an obligation to bring the matter before the court almost immediately so as to provide the court with jurisdiction to review the actions of the CEO by either hearing an application for a protection order or by providing the parent an opportunity to seek an interim order for return of the child. It is significant that in the absence of the CEO making an application for a protection order, there is no procedure in the legislation which enables a parent to challenge or seek a review of the CEO's decision to take a child into provisional protection and care pursuant to s 37. In my opinion, for this reason the combined effect of s 29(3) and s 38(2) and (4) of the CCS Act is that if the CEO does not make an application within two working days as required then he is to be taken, as at that time, to have decided not to make an application and therefore is required under s 38(2) to return the child taken to the parent. In the alternative, in this case the only reasonable inference that can be drawn is that during the two day working day period the CEO had decided not to make an application at that time which gave rise to an obligation to return the child. What s 38 prevents is the CEO postponing an application to make an application to a later time. This interpretation does not prevent the CEO from at some stage in the future applying for a protection order if the circumstances warrant such an application and seeking an interim order for provisional protection and care. However, what the CEO is not permitted to do, as the CEO did in this case, is to retain the child in the CEO's care without making an application within the time limits prescribed by the legislation.

This interpretation of the legislation is consistent with the general purpose and policy of the provisions of the CCS Act. If such an interpretation is not placed upon the provisions then the requirement under s 38(2) that the CEO must make an application would achieve no purpose. It is a known rule of interpretation of statutes that a construction of a statutory provision which makes the provision useful and pertinent is to be preferred to one which would otherwise make the provision insignificant: Project Blue Sky Inc v Australian Broadcasting Authority [71]; The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414.
There are other provisions of the CCS Act which support the interpretation I have given that there is an obligation on the CEO to bring the matter before the court as soon as practicable after the taking of the child. Section 38(5) requires that if a protection application is made, the court must endeavour to ensure that the first listing date is not more than five working days after the application is made.
Based upon the interpretation I have given to the legislation, the application before the magistrate proceeded on 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. Accordingly on the ground 5 I will give leave to appeal and allow the appeal.

Ground 1

The magistrate in her reasons for decision characterised the psychiatric evidence of the assessments made by Dr Stevens as being restricted to whether there was a psychotic or other mental illness that would justify an involuntary admission rather than care in the community; and whether there was any mental illness which would lead to functional impairment.
I concluded that this was an error in fact. The Bentley Hospital inpatient discharge letter, which was annexed to both affidavits of the mother sworn on 14 November 2013, states on page 1 the reasons for the admission of the mother to the Bentley Hospital as being 'admitted for assessment of mental state, risk to reputation and risk to safety of child' (emphasis added). It is clear from this document that the assessment undertaken by Dr Stevens at the Bentley Hospital went beyond simply the narrow areas suggested by the magistrate. This is also confirmed by further comments in the discharge letter which include on page 2 the following:
[The mother] was admitted as an involuntary patient to the locked ward for psychiatric assessment. She was placed on a Form 4 and assessed over the following two days. She presented as distressed and on questioning, she expressed overvalued ideas about her water being contaminated in her previous apartment as her clothes became bleached and her skin irritated.
She thought that someone may have tampered with her water but was open to challenging: She agreed that it was more likely that the water was different to what she is used to or that her laundry detergent was abrasive. Collateral information was sought from the Child Protection (CPFS) over the course of the admission. They investigated the veracity of the claims about a stranger following [the mother] and her daughter and about him having entered her flat whilst her daughter was there alone. They found that the direct information from [the] daughter supported that these were not delusions but true descriptions given by [the] daughter. There was no evidence of psychotic phenomena during psychiatric interviews and on the ward. [The mother] was, however, very concerned and distressed about the welfare of her daughter and about being away from her.
It was felt that medications would not be useful for [the mother] at this time, and that resolution of psychosocial stressors and supportive outpatient mental health review would be of most use. The Form 4 was allowed to lapse and [the mother] was discharged from our care after meetings with the CPFS.
[The mother] is to attend a court hearing tomorrow where CPFS will apply for two year guardianship of [the] daughter. A supporting letter was written by the treating team for the court, indicating the findings of our clinical assessment. [The mother] also needs to attend to financial and work issues, as well as moving her belongings from her previous residence.
The letter went on to state that the mother was referred back to ICMHS for outpatient follow up and mental state monitoring.
As stated earlier in this decision, the affidavit of [suppressed] sworn and filed on 30 October 2013 in support of the CEO's application for a protection order, summarised the basis of the CEO's application as follows:
The Department believes that [the child] is vulnerable and at considerable risk of further psychological and emotional harm if she remains in her mother's care while her mother continues to present with symptoms of delusional paranoia, and that a protection order is necessary to ensure her safety and wellbeing.[14]
Given the findings contained in the Bentley Hospital inpatient discharge letter, the learned magistrate ought to have given considerable weight to these findings and the opinions expressed by Dr Stevens. It appears that the magistrate may have only taken into account the letter of Dr Stevens and not taken into account the greater details which are provided in the Bentley Hospital's inpatient discharge letter. The contents of this discharge letter demonstrate the assessment made by Dr Stevens was highly pertinent to the issue of the risk to the child and the magistrate made an error of fact in her characterisation of the purpose of the assessment.
For the above reasons, I give leave to appeal on ground 1 and allow ground 1 of the appeal.

Ground 2

The starting point in considering ground 2 is to consider the nature of the task undertaken by the magistrate and to consider the extent to which it can be reviewed by this court on appeal.
On an application for a protective order, the court may make an order if it finds 'the child is in need of protection' (s 45). What constitutes a child 'in need of protection' is defined in s 28(2). Relevant to this case is s 28(2)(c), which provides that a child is in need of protection if:
[T]he child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i)physical abuse;
(ii)sexual abuse;
(iii)emotional abuse;
(iv)psychological abuse;
(v)neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind.
The CCS Act provides no guidance as to what criteria are to be applied on an application for an interim order that a child be returned to a parent. The discretion to grant an interim order is clearly a wide discretion. The exercise of the discretion clearly must take into account the provisions of the CCS Act, including the matters to be taken into account in determining the best interests of the child and the principles to be observed (s 7, s 8, s 9 and s 46).
A discretion to grant an interim order is not unusual in a variety of areas of law. The considerations and emphasis will depend upon the statutory regime in question: ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 8 CLR 199, 1 (Gummow & Hayne, with whom Gaudron J agreed). In the civil jurisdiction, the granting of an interim injunction is governed by two main inquiries; whether the claimant has made a prima facie case and whether the balance of convenience favours the granting of the interim relief. How strong the evidence must be to establish a prima facie case depends upon the nature of the rights asserted and the practical consequences that are likely to flow: Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57, 65 ‑ 71 (Gummow & Hayne JJ).
In cases where the application seeks interlocutory mandatory relief (such as a right to re‑enter), it is said that the interlocutory mandatory injunction should be granted only if the court has a high degree of assurance that the applicant will succeed at trial. However, ultimately the question is the balance of the risks of injustice. In considering that balance, the court must also take into account the nature and consequences of the particular relief sought: Cash Converters Pty Ltd v Hila Pty Ltd (1993) WAR 471, 483 ‑ 484. Where the court makes an assessment of the strength of the claimant's case, the court does not undertake a preliminary trial, and does not give or withhold interlocutory relief upon a forecast as to the ultimate result of the case: Beecham and Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622; Johnson v Cetin [2011] WASC 344 [39] (Edelman J).
In this matter, the magistrate appeared to apply a test of whether, on the evidence provided by the Department, it justified a concern of the Department that the child was likely to suffer harm as a result of emotional and/or psychological abuse, and that the mother is unlikely or unable to protect the child from harm at the current time. That is a test which placed an emphasis on the concerns of the Department and whether its concerns were justified.
Alternatively, the magistrate stated that she believed that there was a significant risk of emotional and/or psychological harm which may be minimised by supervision and support to the mother by the Department and other agencies, but she had no confidence that the mother would cooperate.
In my opinion a court on an application for an interim order for return of a child needs to give consideration to the whole of the evidence presented on the application, not just the evidence presented by the Department, and on forming a view of the strength of the Department's case, and having given consideration to the statutory regime and of the consequences of an order being made or not made, decide whether to exercise the discretion.
It was not argued on the appeal before me that the magistrate made an error in law as to the test to be applied on an application for an interim order. Therefore, it would not be appropriate for me to make any ruling as to whether the magistrate applied the correct test.
However, the question remains whether the discretion exercised by the magistrate should be reviewed and interfered with, taking into account the principles of House v The King referred to earlier in this decision.
Of course, for the reasons I have given in relation to grounds 1 and 5 of the appeal, I have already reached the decision that an error has occurred and therefore it is open for this court to re‑exercise the discretion. However, putting aside the errors that I have identified on grounds 1and 5, I otherwise conclude that the decision of the magistrate in the circumstances was against the best interests of the child, plainly unjust and ought to be set aside. I reach this conclusion for the following reasons:
(1)The magistrate made an important finding that the child had not been harmed up to the point of time of the date of the hearing. At page 35 of her Honour's decision, she stated as follows:
Now, the first thing to be said in relation to that is that there is no evidence of actual harm suffered by the child; so I am saying harm of the kind which the Department relies upon at this point of time, however, there is a prima facie a foundation for concern about the likelihood of harm and I will come back to that in a moment [2].
(2)According to the affidavit of [suppressed] of 30 October 2013 when departmental officers met with the mother and the child on 9 and 11 October 2013, the child presented as 'happy, clean and well kept'.
(3)The report of [suppressed] in relation to the contact visit on 4 November 2013 noted that the mother and daughter had a close, warm attachment and that the daughter had a mature presentation, which showed that the mother had laid some good psychological foundations for the daughter.
(4)The decision of the magistrate relied substantially upon the concerns expressed to the Department by the police, a real estate agent, the Dean of the primary school that the child attended and the PMH. Counsel for the first respondent also paid particular emphasis upon the PMH report which indicated that the child had complained that she had not been fed and washed properly. It was these matters which caused the Department to suspect that the mother was suffering from delusional paranoia. However, when the mother was thoroughly assessed over a three day period in hospital, the expert opinion was that she was not suffering from any delusional mental state and that she was a mother stressed and required support. In any event, the concerns arising from the complaints received by the Department, must be put in the context of the magistrate's significant finding that no harm had been suffered by the child.
(5)The second major factor taken into account by the magistrate was the emotional episodes that occurred on 24 October 2013 and 4 November 2013, when the mother refused to release the child from her bond and allow the supervised contact meeting to be terminated. The mother does not deny that she found it very difficult to end these contact meetings. However, her behaviour must be judged in the context of the behaviour of the officers of the Department. The Department took the child into care on 12 October 2013. It was explained to the mother that the purpose of the CEO taking the child into provisional protection and care was that there was nowhere for the child to stay whilst the mother was admitted to hospital for assessment. The 12 October 2013 was a Saturday. The mother was released from the Bentley hospital on 17 October 2013. By that time the two working days prescribed under the legislation for the CEO to make an application to the court had expired. The CEO had not made the application to the court as required by the legislation. The officers of the Department must have been aware of the statutory obligation. It is referred to in a letter handed to the mother on 12 October 2013. On release from the hospital the mother had every reason to believe that the child would be returned to her as the Bentley hospital had concluded that she was not suffering from delusional paranoia suspected by the Department. On 22 October 2013 the mother met with departmental officers but the child was not returned to her. Still the CEO had not applied to the court for an order. On 24 October 2013 the first contact visit occurred between the mother and the child. This was seven days after discharge of the mother from the hospital. Up until that point the mother had only two telephone contacts. Still the CEO had not applied to the court for an order. It was on 24 October 2013 that the first incident occurred where the mother resisted terminating the contact visit as she wanted to take the daughter home with her. This is hardly surprising given the conclusions reached by Dr Stevens and particularly as he concluded that the mother was a concerned mother under stress. It is extraordinary that departmental officers did not recognise the emotional trauma that the mother was going through by the Department refusing to release the child to her. This was a refusal which was not authorised by the legislation and was in the context of a flagrant disregard by the Department of the CEO's obligation to apply to the court for a protection order within two working days. The further contact visit on 4 November 2013 again occurred in the context that the mother was still being denied return of the child. It is remarkable that [suppressed] in her report did not acknowledge the enormity of the emotional trauma that was being caused to the mother by the child not being returned and attributed the mother's focus on wanting to take the child home with her as some form of 'delusional thinking'. It is also of concern that [suppressed] when trying to persuade the mother to release the child at the end of the contact visit on 4 November 2013 threatened the mother that the child would be taken into the care of the CEO until the child was 18 years of age if the mother did not cooperate. This revealed an attitude, consistent with the delay in the Department bringing the matter before the court, that the Department could decide unilaterally what was to be the outcome in terms of protection and care of the child.
(6)The magistrate also in her decision relied upon the emails between the mother and father as indicating that the mother was in a mental state that she was unlikely to be able to protect the child. However, in my opinion, the magistrate, by taking into account these emails as supportive of the Department's position, failed to give proper consideration of the mother's circumstances. Her only child (then aged 7) had been taken away from her, she had no family support in Australia and was understandably feeling desperate and worried at the time.
(7)Further contact visits occurred on 19 November 2013, 26 November 2013 and 6 December 2013 largely without incident.
(8)There was a countervailing and significant risk of emotional and psychological harm to the child if an interim order was not made returning the child to her mother. This was a significant risk given the age of the child, the acknowledged close relationship between the child and the mother and the separation of the child from the [nationality suppressed] cultural influences that the mother provided.
For the above reasons, I give leave to appeal on ground 2 and allow the appeal on this ground.

Ground 3

Ground 3 of the appeal raises questions of procedural fairness. There is a fundamental obligation of a judge or magistrate to ensure that a fair hearing occurs according to the law. The concept of a fair hearing means fairness to all parties. It is the duty of the judicial officer conducting the hearing to ensure that the hearing is conducted in accordance with due process, fairly and impartially. It is necessary that the judicial officer conducting the proceedings control the proceedings. This may mean that the judicial officer will intervene in order to prevent irrelevant matters being raised and pursued: Michael v The State of Western Australia [2007] WASCA 100 [65], [69] (Steytler J); O'Connell v The State of Western Australia [2012] WASCA 96 [103] ‑ [104] (Mazza J).
Where a party contends that bias existed, the party must show that the mind of the decision‑maker was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might be presented. Actual bias would exist where the decision‑maker has prejudged the case against the party or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the party and was not open to persuasion in favour of that party. An allegation of actual bias must be 'distinctly made and clearly proved': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [36], [69], [72], [127]; Ibrahim v Herring [No 3] [2011] WACA 265 [12] (Mazza J).
The mother contends that the learned magistrate manifested bias against the mother by yelling at her, cutting her off during submissions and ignoring her evidence and the evidence of Dr Stevens. I am not able to reach any conclusion as to whether the learned magistrate yelled at the mother and, in any event, this would not constitute procedural unfairness except in a very extreme case. Having read the transcript of the hearing, I am not satisfied the mother was 'cut‑off' and not prevented from fairly presenting her oral submissions. In relation to the contention that the magistrate ignored the evidence of the mother and the evidence of Dr Stevens, this is not an issue of bias but whether the learned magistrate's decision was supported by the evidence. This is an issue which has already been dealt with in ground 2.

On the hearing of the appeal, when I made enquiries as to what material was before the magistrate, both the mother and counsel for the child contended that they had not been served with a copy of the affidavit of [suppressed] sworn on 8 November 2013. This affidavit was an important part of the case presented by the CEO. It contained a description of what allegedly occurred at the supervised contact visits on 24 October 2013 and 4 November 2013 and contained as annexures written reports of [suppressed], [suppressed] and a PMH inpatient discharge letter. For reasons disclosed earlier in this decision, all of these annexures were important items of evidence. Counsel for the CEO indicated that her instructions were that the affidavit of [suppressed] was served on the mother on 15 November 2013. I requested an affidavit of service be filed which was filed subsequent to the hearing of the appeal and indicates that an envelope containing the affidavit was left for the mother at the reception area of the Fremantle office of the Department and this was collected by the mother on 15 November 2014. Counsel for the CEO did not contend that the child's representative had been served with the affidavit.
I note from the transcript of the hearing before the learned magistrate that both the mother (ts 12) and counsel for the child (ts 30) both acknowledged that they had received a copy of the report of [suppressed] which was an annexure to the affidavit. It appears from the transcript that counsel for the child (not counsel who appeared on the appeal) may have only been given a copy of the report during the hearing as he indicated to the magistrate that he was unable to respond to it as he was still considering the content of the document.
The failure of the CEO to serve a copy of the affidavit of [suppressed] on the representative of the child is a serious deficiency. Although this is an appeal by the mother, it is a significant part of the process to ensure a fair hearing that the representative of the child is fully served with copies of the evidence before the court so that submissions can be presented which emphasise factors which the magistrate should take into account in considering what are the best interests of the child. This is particularly so where, as in this case, the mother is self‑represented and the submissions of the representative of the child were substantially supportive of the submissions of the application of the mother.
On the basis of the transcript, I conclude that the learned magistrate did not take into account the affidavit of the mother sworn and filed on 14 November 2013. This affidavit contains some important evidence from the mother of difficulties she experienced in attending and arranging with the Department supervised contact meetings. I conclude that these difficulties caused frustration and are factors to be taken into account when considering the mother's emotional responses during contact meetings on 24 October 2013 and 4 November 2013.
I conclude that on the material before me there is a serious doubt as to whether a fair hearing occurred and accordingly I will grant leave and allow ground 3 of the appeal.

Orders

Having allowed grounds 1, 2, 3 and 5 of the appeal, the order of the learned magistrate should be set aside. The next question is whether I should grant the mother's application for return of the child or remit the matter back to the Children's Court for rehearing. This is a difficult question. This court has the power to do either under s 14 of the Criminal Appeals Act. For the reasons that I have given in this decision on ground 2 of the appeal, I conclude, on the basis of the evidence before the magistrate, that an interim order should have been made for return of the child to the mother.
It is contended by counsel for the CEO that to make an order for return of the child to the mother is likely to unduly influence the outcome of the substantive application by providing an indication by this court of what the ultimate outcome ought to be on the substantive application and therefore unduly influence the outcome of those proceedings. I have no hesitation in rejecting this proposition. The decision that I make on this appeal is relevant only to the application by the mother for interim orders. The court hearing the substantive application will have to decide that application on the basis of the evidence before it.
Counsel for the CEO also contends that I should remit the matter back for rehearing of the interim application so that the court can be provided with further evidence as to the current circumstances and events that have occurred since the making of the order on 20 December 2013. It is submitted that this is necessary in order to ensure the wellbeing of the child. I acknowledge that there is considerable merit to this submission.
However, on the basis of my interpretation of the legislation the CEO is obliged to return the child to the mother immediately and therefore the order that I should make is for the child's return.
Alternatively, on the material before me, I am of the opinion that the longer the delay in returning the child to the mother, the greater the risk the child will suffer emotional and psychological harm by the separation from her mother. I take into account that on the child being returned to the mother pursuant to any order made by me, the Department has wide powers of enquiry under s 31 of the CCS Act to monitor the situation. I believe the well‑being of the child can be further secured by making additional orders that:
(a)The mother is not to withdraw the child from her current school pending the hearing of the CEO's application for a protection order except with leave by an order of the Children's Court. (This requirement is designed to achieve stability in the child's life).
(b)The mother is to inform the Department within 24 hours of the details of any change of address of the appellant and the child.
(c)The matter be remitted back to the Children's Court before a different magistrate for consideration of what further orders (if any) might be made to provide ongoing support and monitoring on an interim basis. (Although the magistrate had concluded that the mother was unlikely to cooperate, I believe the situation will change once the child is returned to the mother).
(d)There be liberty to apply to the Children's Court by the CEO for a variation or revocation of the interim order made by me for return of the child to the mother on the grounds that new factual circumstances have arisen since the hearing before the magistrate on 30 December 2013 justifying a variation or revocation (this order is designed to extend the right under s 134 of the CCS Act to apply for a variation or revocation on new facts and circumstances that have arisen from the date of any interim order so the application can be based upon new facts or circumstances that have arisen since the 30 December 2013).
I will hear submissions as to the time needed to effect a release of the child to the mother before making final orders.