JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MD -v- NORONHA [2024] WASC 60
CORAM: SEAWARD J
HEARD: 27 FEBRUARY 2024
DELIVERED : 27 FEBRUARY 2024
PUBLISHED : 8 MARCH 2024
FILE NO/S: CIV 1211 of 2024
BETWEEN: MD
Applicant
AND
AINSLIE NORONHA
First Respondent
MIKE ROWE
Second Respondent
Catchwords:
Judicial review - Child protection - Immediate and substantial risk to a child's wellbeing - Suspicion on reasonable grounds - Decision to take child into provisional protection and care without a warrant - Whether unreasonable exercise of discretion - Whether irrelevant consideration taken into account - Whether failure to accord procedural fairness - Turns on own facts
Legislation:
Children and Community Services Act 2004 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | C Bahemia |
| First Respondent | : | D Van Nellestijn |
| Second Respondent | : | D Van Nellestijn |
Solicitors:
| Applicant | : | Carol Bahemia Lawyers |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Cases referred to in decision:
A v Corruption and Crime Commissioner [2013] WASCA 288
Commissioner of Police v Ferguson [2019] WASCA 14
Defendi v Szigligeti [2019] WASCA 115
Frigger v Frigger [2023] WASCA 103
Jacob v Save Beelier Wetlands Inc [2016] WASCA 126; (2016) 50 WAR 313
Kioa v West (1985) 159 CLR 550
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Sanders v City of South Perth [2019] WASC 226
Sieffert v Prisoners Review Board [2011] WASCA 148
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
SEAWARD J:
Introduction
This is an application for judicial review of the decision of the first respondent to exercise the powers conferred by s 37(2) of the Children and Community Services Act 2004 (WA) (the Act) and take the applicant's child into provisional protection and care.
The applicant was admitted to King Edward Memorial Hospital in preparation for giving birth to her baby on 16 February 2024. The applicant's baby was born on 18 February 2024.
The applicant has two older children who are subject to protection orders in favour of the second respondent, each of which were granted on 2 August 2023.
Officers of the Department of Communities (Department) have had involvement with the applicant since at least 2019. Following the protection orders being granted in August 2023, officers continued to engage with the applicant.
On 2 October 2023, officers of the Department were advised that the applicant was pregnant. The officers continued to engage…
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- AGLC
- MD v Noronha [2024] WASC 60
- Case
- [2024] WASC 60
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework and the discretion given to the decision-maker in balancing the various factors and matters. The court held that the decision-maker's discretion was circumscribed by sections 7, 8, and 9 of the Act, which required the decision to be exercised reasonably and for the best interests of the child. The court considered whether the decision-maker took into account an irrelevant consideration and whether it was reasonable to conclude that the child's best interests were served by the decision. The court noted that the weight to be attributed to each of the mandatory relevant considerations was a matter for the decision-maker, and the decision would not be deemed unreasonable unless it was found to be outside the range of reasonable decisions.
The court found that the decision-maker did not take into account an irrelevant consideration when deciding to use section 37 instead of section 35 of the Act. The court considered the evidence provided by the applicant and found that the decision-maker's concerns about the duty magistrate's likelihood of granting a warrant under section 35 did not constitute an irrelevant consideration. The court further held that the decision-maker reasonably concluded that it was in the best interests of the baby to take the baby into provisional care and protection, based on the information available and the considerations in sections 8(1) and 9 of the Act.
The court dismissed the applicant's application for judicial review and affirmed the decision of the first respondent to take the baby into provisional protection and care without a warrant. The court found that the decision-maker exercised their discretion reasonably and for the best interests of the child, and that there was no failure to accord procedural fairness. The decision underscores the importance of balancing various factors and matters when exercising discretion under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In circumstances where a decision maker is required to balance various factors or matters, the giving by a decision-maker of inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness in the relevant sense.[60] The weight to be attributed to each of the mandatory relevant considerations is a matter for the decision maker.[60] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 ‑ 627; 641, 657, 659, 672; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 40 - 42; Ministerfor Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 351, 363 [30], [66]. As outlined by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection, the exercise of the first respondent's discretion was circumscribed in by s 7, s 8 and s 9 of the Act. Accordingly, the first respondent was not only required to exercise the power reasonably, but was also required to exercise the power for the purpose of advancing the best interests of the child. The questions for the court are therefore whether:(a)the first respondent has taken into account an irrelevant consideration; and(b)it could reasonably be concluded on the information available to the first respondent, having regard to the considerations in s 8(1) and the principles contained in s 9 of the Act, that it was in the best interests of the baby to take the baby into provisional care and protection. The applicant submits that the first respondent took into account an irrelevant consideration, being the (alleged) conclusion that the first respondent did not apply for a warrant under s 35 of the Act instead as he was concerned that the duty magistrate would not grant a warrant in this case. In order to understand this submission, it is necessary to set out the evidence upon which it is based. In the second affidavit of Ms Cramer, she deposes as to a conversation between herself (and other members of the applicant's support network) and the first respondent on 22 February 2024, in which Ms Cramer attempted to persuade the first respondent not to take the applicant's baby away under s 37(2) of the Act. Ms Cramer deposes as follows:4.I asked the First Respondent why they went for a section 37.5.The First Respondent told us that the duty Magistrate that day was Magistrate Hogan and he was unlikely to endorse a section 35 application, and generally asks for the section 37 for hospital discharge. Therefore, they won't consider an application pursuant to section 35. In the first respondent's affidavit, he deposes as follows:[61]On 22 February 2024 Ms Elkins and I met with [MD] and we [sic] FINWA worker Ms Truman as well as FINWA CEO Elizabeth Cramer ('Ms Cramer') and Ms Djulbic to discuss the Department's plan for [MD] and baby [X]. At this meeting I advised [MD] that the Department would be bringing baby [X] into care and placing [X] with a Departmental foster carer and provided [MD] with a copy of a letter confirming this. Ms Cramer sought clarification on the Department's decision to utilise s37 rather than s35 of the Act to bring baby [X] into care and I advised that the Department experience of using s35 has been inconsistent with the Children's court in these circumstances with some magistrates advising the Department that s37 was the appropriate course of action and others accepting s35.[61] Affidavit of first respondent [50].