MD v Noronha
[2024] WASC 60
•8 MARCH 2024
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 with the applicant and her support network since that time to plan for the birth of the applicant's baby.
The first respondent's position is that the applicant was due to be discharged from hospital on 22 February 2024, and on the same date the first respondent made a decision under s 37(2) of the Act to take the applicant's baby into provisional care and protection given the impending discharge of the applicant from hospital. The decision was communicated to the applicant and carried into effect on 22 February 2024 with the baby being placed with foster carers.
The applicant filed an application for judicial review on Friday 23 February 2024 accompanied by a certificate of urgency. The matter was listed before me on that day at 4.45 pm. At that hearing, I only had the benefit of affidavit evidence from the applicant. Counsel for the first and second respondents sought time to put on affidavit evidence concerning the decision made. This was opposed by the applicant. I formed the view that it was appropriate to allow a short time for the respondents to put on their affidavit evidence, and on 23 February 2024 I provided short oral reasons for my decision. Those reasons are not repeated here, save to say by way of overview that owing to the nature of the decision made and the power exercised, I considered that while it was important that the application be heard as a matter of urgency, in order to properly consider the application for judicial review, I formed the view that it was necessary to allow the respondents time to put on their affidavit evidence.
This was essentially for two reasons, the first being so that the court had before it the material necessary to properly consider the application, and secondly to ensure the respondents were accorded procedural fairness. Based on the material and information before me on 23 February 2024, I then made orders programming the provision of affidavit evidence and submissions by 4.00 pm on Monday 26 February 2024, and adjourning the hearing until Tuesday 27 February 2024.
The parties filed affidavit evidence and submissions in accordance with my programming orders, and the matter was heard on 27 February 2024. Owing to the urgency of the matter, the nature of the decision exercised and the fact that protection order proceedings have been commenced in the Children's Court and had a first listing date of 29 February 2024, I considered it appropriate that I provided my decision to the parties on the afternoon of the hearing, and I indicated that my written reasons would follow. These are those reasons.
In order to protect the identity of the applicant and her child, in these reasons I will not refer to the applicant or her child by their names. No disrespect is intended in adopting this approach. Orders have also previously been made to anonymise the citation to this decision and the references to the applicant and her child.
Evidence
The applicant relies on two affidavits of Elizabeth Cramer, sworn 23 February 2024 and 26 February 2024 and the documents attached to each. Ms Cramer is the Chief Executive Officer of Family Inclusion network of Western Australia (FinWA). FinWA is a non‑government agency funded by the Department to provide advocacy and support for families engaging with the Department in respect of their children. FinWA has been providing support to the applicant since 6 December 2023.
The respondents rely on the affidavit of the first respondent, Mr Noronha, sworn 26 February 2024, and the documents attached to it. The first respondent is the Team Leader of the team responsible for the applicant's case at the Department. The first respondent has a Bachelor of Psychology and has worked at the Department for 16 years.
Owing to the urgency of the application, and also the need to provide my reasons to the parties expeditiously, I have not summarised the respective affidavits or the attachments, but rather I have referred to the relevant aspects of each in the disposition part of these reasons. In order to protect the privacy of the applicant and her children, I have attempted to avoid providing unnecessary detail of sensitive matters.
Legal principles - judicial review
Prior to considering the decision in question and evidence before the court, it is necessary to say something about the nature of judicial review, both generally and in relation to this specific case.
The applicant applies for a writ of certiorari to quash the decision of the first respondent, alleging that the decision involves jurisdictional error on the part of the first respondent. The applicant also seeks various declarations.
A decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision maker.[1] As observed by the High Court in Kirk v Industrial Court of New South Wales,[2] it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. However, some common examples of errors which may amount to jurisdictional error on the part of an administrative tribunal or decision maker include: a mistaken assertion or denial of jurisdiction; a misapprehension or disregard of the nature or limits of the decision‑maker's functions or powers; acting wholly or partly outside the general area of the decision‑maker's jurisdiction; acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact; failing to take into account a relevant consideration; taking into account an irrelevant consideration; misconstruing the relevant legislation so as to misconceive the nature of the function being performed or the extent of the decision‑maker's powers; acting in bad faith and breaching the rules of natural justice.[3]
[1] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].
[2] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].
[3] M Aronson, 'Jurisdictional Error without the Tears' in M Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, Victoria, (2007) 330, 335 - 336, as cited in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].
An application for judicial review is not an appeal from the decision in question, and it does not involve the supervising court conducting a merits review of the decision in question and substituting its own decision for that of the decision maker. Rather the court's role is to decide the limits within which the decision maker must exercise their discretion and whether the decision maker has exceeded those limits. If the decision is made within those limits, then it cannot be impugned.[4]
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.
Accordingly, this application for judicial review concerns whether the first respondent exercised the power under s 37(2) of the Act lawfully, and it is not a review of the merits of the first respondent's decision. In considering the application for judicial review, the court is not expressing a view as to what is in the best interests of the applicant's child or any view on the protection order proceedings. The legislation has entrusted the respondents, and the Children's Court of Western Australia, with that responsibility.
Grounds of application
The applicant filed an amended application for judicial review on 26 February 2024, and at the hearing on 27 February 2024, I granted the applicant leave to amend.
The applicant applies for a writ of certiorari and a declaration as follows:
The grounds for the above application are these —
1.The Applicant is the mother of Baby [X] who was born at 2.54am on 18 February 2024 in King Edward Memorial Hospital (KEMH).
2.The Applicant engaged with KEMH, Family Inclusion Network of WA (FINWA); Zonta; [X] Family Refuge and Sandra Elkins case worker of the Department of Communities.
3.Diana Djulbic ('Dee') Social Worker at KEMH told all parties that the Applicant and Baby could stay in the hospital for up to 5 days if necessary.
4.On 22 February 2024 Baby was not a child at immediate or substantial risk for the purposes of section 37 of the Act.
5.The Respondents erred in law in that:
5.1 The Respondents did not provide the Applicant with procedural fairness in so far as the Respondents relied on any concern it held as to the immediate and substantial risk to the child and not raised with the Applicant;
5.2 There existed no facts capable of being an immediate and substantial risk to the wellbeing of [X], such that the Respondents did not have jurisdiction giving rise to the exercise [of] any discretion to make a decision pursuant to section 37(2);
5.3 The Respondents took into account an irrelevant consideration in that they took into account the notion that a Magistrate of the Children's Court would not grant an Application pursuant to section 35 of the Act and preferred the child be taken into provisional protection pursuant to section 37(2).
As to discretionary factors:
1.Before admission to KEMH for the birth of Baby, the Applicant commenced residing at [X], a refuge from 16th February 2024, and arrangements were in place for the Applicant to return to the Refuge after birth.
2.The Applicant had ended an abusive relationship and on 25th January 2024 and [sic] produced a clean hair follicle test for the Department of Communities.
3.The Applicant's eldest child has committed a serious act of self harm on learning of the potential decision of the Department of Communities.
4.Baby has been placed in general foster care.
5.The Respondent has allowed the Applicant contact with baby [X] today. There are no arrangements for the weekend. The Applicant hoped to breast feed Baby and the return date in the Childrens [sic] court for the purposes of section 38(4) of the Act is 28 or 29 February 2024.
Legislation
The relevant statutory context for the decision under review is contained in the Act. In YPW v Chief Executive Officer, Department for Child Protection,[5] Mitchell J (as his Honour then was) considered an application for judicial review of a decision made under s 37(2) of the Act. In that decision, his Honour provided a helpful summary of the legislative provisions, the proper construction of s 37(2) of the Act and some of the relevant considerations concerning jurisdictional facts and reasonableness in the context of an application for judicial review of a decision purportedly made pursuant to s 37(2) of the Act. Whilst there have been some amendments to the sections of the Act since that decision, none are material to his Honour's conclusions. I respectfully agree with the conclusions expressed by his Honour and the following section of these reasons is taken largely (but not entirely) from that decision.
Objects, considerations and principles
[5] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
Part 2 of the Act identifies the objects of the Act and a number of important general considerations and principles which inform the content and exercise of the statutory powers contained elsewhere in the Act.
The objects of the Act of central relevance to the present application are identified in s 6 of the Act in the following terms:
(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.
Section 7 of the Act establishes the best interests of the child as the paramount consideration:
In performing a function or exercising a power under this Act in relation to a child, the paramount consideration is the best interests of the child.
Section 8 of the Act identifies mandatory relevant considerations which must be taken into account in determining what is in a child's best interests. Those considerations include, inter alia, the need to protect children from harm and the capacity of the child's parents to protect the child from harm and to provide for the child's needs.[6] 'Harm' for these purposes includes harm to the child's physical, emotional or psychological development.[7]
[6] Sections 8(1)(a) - 8(1)(c) of the Act.
[7] Section 3 of the Act (definition of 'harm').
In determining where the best interests of a child lie, s 8 also requires account to be taken of:
(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 member of the child's family;
and:
(m) the likely effect on the child of any change in the child's circumstances.
The list of considerations in s 8 of the Act is not exhaustive, and I have not set out all relevant considerations above. As observed by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection:[8]
… The considerations which I have identified highlight the tension which may be inherent in determining what is in the best interests of a child exposed to 'harm', broadly defined, while in the care of their parents. The provisions of s 8 recognise the harm which may be caused to a child by separating a child from his or her parents. In some cases the extent of the harm to which the child is exposed while in his or her parents' care may be such that it is clearly in the child's best interests to be taken into care, notwithstanding the potential harm that will result from the child being separated from his or her parents. For example, where a child is exposed to serious sexual or physical abuse it may be clear that the risk of harm as a result of separation from parents is outweighed by the risk of physical and psychological trauma faced by the child in his or her parents' care. In other cases, where the degree of harm to which a child is exposed is less gross, difficult questions of judgment and balancing of risk arise in determining what is in the child's best interests. Where a child may be exposed to a risk of harm if left in his or her parents' care, and may be exposed to a different kind of harm if removed from the parents' care, then ascertaining what is in the child's best interests can involve an assessment of which approach is less deleterious.
[8] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [14].
Section 9 of the Act also includes other principles that are to be observed when performing functions under the Act. I have not set out every principle here, but these include that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing; 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; that every child should be cared for and protected from harm; every child should live in an environment free from violence and every child should have stable, secure and safe relationships and living arrangements.[9]
[9] Section 9 (a)-(e) of the Act.
Section 9(f) of the Act establishes a principle that intervention action should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. Intervention action means action that involves making an application for a warrant (provisional protection and care) under s 35, taking the child into provisional protection and care under s 37 or making a protection application.[10] This principle may provide an answer where there are other means of avoiding harm altogether, but the dilemma remains where harm cannot be avoided altogether. Where harm to the wellbeing of a child cannot be avoided other than by intervention action, a difficult judgment remains in balancing the harm to which the child is exposed in his or her parents' care against the harm which may result in separating the child from his or her parents.
Investigations and authorised officers
[10] Section 9(f) read with s 32(2) of the Act.
If the second respondent determines that action should be taken to safeguard or promote a child's wellbeing, the second respondent must carry out one or more of the duties identified in s 32(1) of the Act.
These include providing, or arranging, for the provision of social services to the child and, if appropriate, a parent or family member, entering into a responsible parenting agreement in respect of the child, causing an investigation to be undertaken by an 'authorised officer' for the purpose of ascertaining whether the child may be in need of protection or taking intervention action.[11] Pursuant to s 33A of the Act, the second respondent can commence an investigation before a child is born, if the second respondent receives information that raises concerns about the child's wellbeing after the child is born.
[11] Section 32(1)(a), (ca), (d) and (e) of the Act.
An 'authorised officer' is a person authorised by the second respondent under s 25 of the Act.[12] It is not in issue that the first respondent is an authorised officer for relevant purposes in this case.[13]
Provisional protection and care
[12] Section 3 of the Act.
[13] Affidavit of first respondent [1] and AN1.
The Act provides for three means by which a child may be brought into the provisional protection and care of the second respondent.
First, by the execution of a warrant (provisional protection and care) issued by a judge or magistrate under s 35 of the Act. The grounds on which an authorised officer may apply for such a warrant are that the officer believes that the child in need of protection and (relevantly for this application):[14]
in a case where the child is temporarily in a safe place (for example, a hospital) - believes that, when the child leaves that place, this child is likely to be living in circumstances that pose an unacceptable risk to the child's wellbeing;
[14] Section 35(1)(ca) of the Act.
Secondly, by an authorised officer (or a police officer) under s 37(2) of the Act which provides as follows:
An officer may, at any time, take a child into provisional protection and care if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing.
The exercise of this power does not require a warrant and is the power relied upon in the present case. If the power under s 37(2) is relied upon, then the second respondent must then comply with the various obligations contained in s 38 of the Act. In the circumstances of the present case, that required the second respondent to make a protection application or other application under pt 4 of the Act as soon as practicable, but in any event not more than two working days, after the child was taken into provisional protection and care.[15]
[15] Section 38(4)(b) of the Act.
Thirdly, when the first respondent makes a protection order application, the Children's Court may make an interim order under s 133(2)(b) of the Act that the child is to be taken into provisional protection and care. The court is also given power by that provision to make an order that the child remain in provisional protection and care.
When a child is placed in provisional protection and care in the exercise of one of these powers, s 29(2) of the Act provides that:
… the CEO, subject to any interim order in respect of the child, has responsibility for the day-to-day care, welfare and development of the child to the exclusion of any other person.
Protection applications
Section 44 of the Act authorises the second respondent to make a protection application to the Children's Court of Western Australia. The application must specify the type of protection order sought and the grounds under s 28(2) on which the application is made.[16]
[16] Section 44(2) of the Act.
The Act provides for a number of different kinds of protection order:[17]
(a)a protection order (supervision), which provides for the second respondent to supervise the wellbeing of the child in a manner which does not affect the parental responsibility of any person for the child, except to the extent necessary to give effect to the order;[18]
(b)a protection order (time limited), which gives the second respondent parental responsibility for a child for the period specified in the order;[19]
(c)a protection order (until 18), which gives the first respondent parental responsibility for a child until the child reaches 18 years of age;[20] and
(d)a protection order (special guardianship), which gives an individual/s (other than the second respondent) parental responsibility for a child until the child reaches 18 years of age.[21]
[17] Sections 43, 47, 54, 57, 60 of the Act.
[18] Section 47 of the Act.
[19] Section 54 of the Act.
[20] Section 57 of the Act.
[21] Section 60 of the Act.
Section 28(2) of the Act contains an exhaustive definition of when a child is 'in need of protection'. Potentially relevant aspects of that definition for present purposes are that a child is in need of protection if:
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i) physical abuse;
…
(iii) emotional 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; or
(d) the child has suffered, or is likely to suffer, harm as a result of -
(i)the child's parents being unable or unwilling to provide, or arrange the provision of, adequate care for the child;
Section 45 and s 46 of the Act provide for the manner in which the Children's Court is to deal with a protection application, in the following terms:
45. Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
(a) make the protection order sought in respect of the child; or
(b) make another protection order in respect of the child.
46. No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
Proper construction of s 37(2) of the Act
Prior to considering the grounds of judicial review, I will make some preliminary remarks concerning the proper construction of s 37(2) of the Act.
Section 37(2) of the Act confers a discretionary power on an officer to take a child into provisional protection and care. That much is clear from the use of the term 'may' in s 37(2). See also YPW v Chief Executive Officer, Department for Child Protection.[22]
[22] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [177] - [178].
Further, that discretionary power is subject to the existence of a condition, being the suspicion of the officer on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing. This condition to the existence of the officer's power may be referred to as a 'jurisdictional fact'.[23] Absent the existence of this jurisdictional fact, the officer does not have jurisdiction to exercise the power under s 37(2) of the Act.
[23] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [163].
As outlined by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection,[24] this jurisdictional fact contains both a subjective and an objective component:
[24] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
Subjective component
165 The subjective component is the existence of the state of mind in the officer, in this case the second respondent.
166 The state of mind is a state of 'suspicion'. The requirement is not that the risk is proven, but that the officer suspects such a risk exists. Suspicion requires a state of conjecture or surmise where proof is lacking. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust.
167 It is permissible for an officer to form a relevant suspicion based on what he or she has been told by others and the grounds for the suspicion need not be based on the officer's own observations.
168 Further, the relevant state of mind is a suspicion as to the existence of a 'risk'. It is not necessary that the officer suspect that actual harm has or will occur. It is enough that the officer suspects that there is a risk that such an outcome will eventuate.
169In some statutory contexts a reference to a risk faced by a child may be to an 'unacceptable risk'. However, I do not think that approach can be applied to s 37(2) of the Act. The concept of 'risk' in s 37(2) is expressly qualified by the terms 'immediate' and 'substantial'. It is enough that the risk is 'substantial', and unnecessary to ask an addition [sic] question as to whether the risk is also unacceptable. Of course, as I shall discuss, the existence of a suspicion as to an immediate and substantial risk is not sufficient to compel the exercise of the power conferred by s 37(2) of the CCS Act. It is also necessary that the officer exercise a discretion having regard to the best interests of the child as the paramount consideration and observing the principles identified in s 9 of the Act. The task of assessing whether the magnitude of the risk justifies taking the child into care occurs at the stage of exercising the discretion, not at the stage of determining whether the discretion is enlivened by the formation of the relevant suspicion. In the present statutory context I see no warrant for introducing a requirement that, in order to enliven the discretion, it is necessary to suspect a risk to wellbeing which is 'unacceptable' as well as substantial.
170 The 'risk', to which the suspicion referred to in s 37 must relate, is a risk to the child's 'wellbeing'. The concept of 'wellbeing' encompasses the care, development, health and safety of the child.
171 The concept of wellbeing is to be understood in the context of s 28 of the CCS Act, which refers to 'harm' as meaning any detrimental effect of a significant nature on a child's wellbeing. Section 28(2)(c) contemplates that such harm may result from 'emotional abuse' and 'psychological abuse'. In that context it is clear that the reference to the 'development' of a child includes the emotional and psychological development of the child, and the 'health' of the child's [sic] includes the emotional and psychological health of the child. The reference to the 'safety' of the child must include the safety of the child from emotional and psychological abuse.
172 The risk which is referred to in s 37(2) must be 'immediate'. A question arises in this case as to when a risk is 'immediate'. The applicant contends that, while the children were at school, they were not at risk of harm, as they were in the care of school staff rather than the applicant. In her evidence, the second respondent agreed that the risk which she perceived would arise only when the applicant collected the children from school. The applicant says that it follows that any risk which she posed to her children was not immediate at the time when they were taken into care, at the end of the school day.
173The concept of immediacy in the Act cannot, in the context of legislation designed to protect children from harm, require an authorised officer to wait until the second the child is exposed to harm before taking action to protect the wellbeing of the child. In my view, the concept of immediacy in s 37(2) of the CCS Act must take its meaning from the broader context in which the term appears. This includes the existence of a power in s 35 of the CCS Act to seek a warrant (provisional protection or care) from a judge or magistrate, and to make a protection application and seek interim orders under s 133 of the CCS Act. That context suggests that the concept of immediacy requires that the risk be so imminent that there is insufficient time for the officer to seek a warrant or an interim order to bring the child into provisional protection and care before the risk eventuates.
174The suspected risk to wellbeing must also be 'substantial'.
175From the above discussion, it can be seen that the subjective element of the condition for the existence of the power does not create a particularly high threshold. It is not necessary that the officer positively believe that the child will suffer harm if the child is not taken into care. It is enough that the officer suspects that there is a risk to the wellbeing of the child, including their emotional and psychological development and health.
Objective component
176 The objective component of the 'jurisdictional fact', or condition for the existence of the power, is that there are reasonable grounds for the officer's suspicion. The existence of reasonable grounds for a suspicion is a question for this court on a judicial review application. The court must consider whether the information held by the second respondent would be sufficient to induce the relevant state of mind - namely suspicion that there is an immediate and substantial risk to the child's wellbeing - in a reasonable person.
(footnotes omitted).
I respectfully agree with and adopt his Honour's reasoning.
If the jurisdictional fact is established, it then falls to the decision maker to decide whether to exercise the discretion to take the child into provisional protection and care. As outlined by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection,[25] the exercise of that discretion is subject to the requirements of s 7 and s 8 of the Act, and the usual requirement that the decision be exercised reasonably:
179The discretion of an officer to take a child into provisional protection and care is expressly circumscribed by s 7 and s 9 of the Act. In exercising the power conferred by s 37(2) of the Act the officer is 'exercising a power under this Act in relation to a child' within the meaning of s 7 of the Act. Section 7 requires that, in exercising that power, the officer 'must regard the best interests of the child as the paramount consideration'. In determining what is in the child's best interests the officer must take account of such of the mandatory relevant considerations identified in s 8(1) of the Act as are applicable to the situation.
180In that manner, s 7 of the CCS Act requires the officer to exercise the discretion conferred by s 37(2) of that Act for the purpose of advancing the best interests of the child, determined taking the relevant matters identified in s 8(1) of the Act into account.
181 The discretion is also subject to implicit limitations derived from the application of rules of interpretation accepted by all arms of government in the system of representative democracy established by State and Commonwealth constitutions. One of those well-established rules of interpretation is the presumption that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. There is nothing in the terms, objects or subject matter of the CCS Act which could rebut the application of the presumption that reasonableness is a condition for the valid exercise of a statutory power conferred by s 37(2) of the CCS Act.
…
187In the present case a question for a court reviewing the exercise of the power conferred by s 37(2) of the CCS Act on reasonableness grounds is whether it could reasonably be concluded on the information available to the relevant officer, 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 child concerned to take that child into temporary care and protection. If an affirmative answer cannot be given to that question then there will have been a failure to comply with a condition for the valid exercise of the power contained in s 37(2), namely that the discretion conferred by that section be exercised reasonably. The officer's arrival at a conclusion which could not reasonably have been reached by a person with a proper understanding of the statutory power may also give rise to an inference that the officer has made some other kind of jurisdictional error.
(footnotes omitted).
[25] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
Again, I respectfully agree with and adopt his Honour's reasoning.
Finally, it is necessary to observe that a distinct feature of the power in s 37(2) of the Act, is that it is conditioned upon a particular temporal element: namely that the officer suspects there to be a relevant immediate risk. Not only is this relevant to the existence (or otherwise) of the relevant jurisdictional fact, but it is also relevant to the question of whether the officer has exercised their discretion reasonably. A second temporal element is that the decision is to take a child into provisional care and protection for a limited period of time only. As outlined by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection:[26]
189… The terms in which the power is conferred indicate that it falls to be exercised in a situation of urgency, where the officer must respond to an immediate risk to the wellbeing of the child. Because the power is activated by the formation of a suspicion, the information which an officer has about the factors relevant to the determination of the best interests of the child is likely to be incomplete. In assessing whether the officer's discretion has been exercised reasonably it must be constantly kept in mind that the occasion for the exercise of the power is likely to require the making of an urgent decision on limited information.
190 In considering the reasonableness of the officer's conclusion about the best interest of the child, the period for which the decision to take a child into provisional protection and care operates must also be considered. If the officer decides to take a child into provisional care and protection then the child will remain in the care of the first respondent until one of the events specified in s 29(3) of the Act occurs. Once the child is taken into provisional care and protection the first respondent is required to either make a protection application or return the child within two working days. The Children's Court is then required to endeavour to ensure the first listing date is not more than three working days thereafter. On that listing date the court may make an order for the return of a child under s 133(2)(a) or (c) of the Act.
[26] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
Issues
Based on the written material filed and the oral submissions, the key issues in this matter are:
(1)Has the jurisdictional fact which conditions the exercise of the power under s 37(2) of the Act been established. This involves considering:
(a)who made the decision;
(b)on what date;
(c)did the decision maker subjectively suspect that there was an immediate and substantial risk to the baby's wellbeing?
(d)would the grounds relied upon by the decision maker be sufficient to induce such a suspicion in a reasonable person?
(2)On the assumption that the jurisdictional fact has been established, was the discretion exercised reasonably;
(3)In exercising the discretion, has the decision maker taken into account an irrelevant consideration;
(4)In exercising the discretion, is the decision maker required to accord the applicant procedural fairness, and if so, has the first respondent met that obligation;
(5)Finally, in the event that I am satisfied that there has been a jurisdictional error, should the court exercise its discretion to grant the prerogative relief sought in all the circumstances?
Disposition - issue 1 - jurisdictional fact
Affidavit evidence
In considering whether the requisite jurisdictional fact exists, it necessary to make some introductory remarks regarding the affidavit of the first respondent. The respondents rely on the first respondent's affidavit in support of their opposition to the judicial review application. The first respondent's affidavit addresses the following matters:
(a)it provides a factual explanation of matters observed/actions taken by officers of the Department, and the concerns of the officers, in relation to the applicant and her older two children in the period 2019 ‑ 2023. This is done by way of annexing four affidavits that were filed by the Department in April and July 2023 in the Children's Court, in relation to protection order applications in relation to the applicant's two older children. On 2 August 2023, the second respondent was granted a Protection Order (until 18) in relation to the applicant's older son, and a Protection Order (time limited) in relation to the applicant's daughter;[27]
(b)it attaches a Parenting Capacity Assessment (PCA) prepared by Annette Paul, a clinical psychologist appointed by the Children's Court as a court appointed expert in relation to the protection order applications for the applicant's two older children. The PCA is dated 17 April 2023 and it answers a number of questions posed (referred to as Terms of Reference) in relation to the parental capacity of both the applicant and the father of the applicant's daughter;[28]
(c)it provides a factual explanation of matters observed and actions taken by officers of the Department in relation to the applicant since the protection orders were made in relation to her two older children. It does this in the body of the affidavit. In this part of the affidavit the first respondent in some instances was the officer taking the steps/action and on other occasions the first respondent is deposing to actions or communications by other officers.[29] The first respondent deposes that the information contained in the affidavit is based on his interactions with the family, discussions with the case manager and information on the Department's file;[30] and
(d)it provides an explanation of the internal Departmental team meetings held in which the applicant's case was discussed, and the conclusions, outcomes or decisions reached in those meetings.[31]
[27] Affidavit of first respondent [4] - [11] and AN2 - AN5.
[28] Affidavit of first respondent AN6.
[29] Affidavit of first respondent [12] - [51].
[30] Affidavit of first respondent [1].
[31] Affidavit of first respondent [39], [44], [49], [50].
I observe that some paragraphs of the affidavit are drafted in the first person. These paragraphs are generally when the first respondent is deposing to actions he has taken or been involved in. However, some paragraphs of the affidavit are drafted in the third person. These paragraphs are generally where the first respondent is deposing to actions taken by others. There is nothing inherently problematic in proceeding in this manner.
However, in the paragraphs where the first respondent is deposing to internal Department meetings, after identifying who has attended the meetings, the first respondent often describes the matters considered at the meetings, the concerns held by persons and the conclusions reached at the meeting in the third person using 'the Department' as the subject or the passive voice without clearly attributing the matters discussed, concerns expressed or decisions made to one or more persons. To provide some examples:[32]
[32] Affidavit of first respondent.
39On 13 February 2024 the Department held an internal consultation with District Director Jane Simmons ('Ms Simmons'), in relation to the available safety planning for [MD] and her baby. It was noted within these discussions that [MD] had addressed ……
However, the Department noted concerns in relation to ….
The Department was also concerned that [MD] …
As a result of these concerns, the decision was made for the Department to …
…
49On 22 February 2024 Ms Elkins and I met with Ms Simmons to discuss safety planning for [MD] and baby [X]. The Department noted the generally positive feedback from …
However, the Department noted significant concerns in relation to …
As a result of these concerns the decision was made to bring baby into the care of the Department under s37 of the act …
The fact that the Department has meetings with relevant officers (including senior officers) to discuss the applicant's case and to make decisions about the applicant's case going forward is not only unsurprising, but appropriate. However, the exercise of the power under s 37(2) of the Act is conditioned upon an authorised officer forming a particular suspicion. As discussed in the next section of these reasons, this use of the passive voice or third person in the drafting of the affidavit has raised some issues.
Who made the decision and on what date
The first issue is what date was the decision made, and who made the decision. The respondents submit that the decision was made on 22 February 2024, whilst the applicant says that it was made on 13 February 2024. Both parties submit that the first respondent is the decision maker.
The differences in the parties' positions arise from the affidavit of the first respondent, and the use of the third person drafting.
In the affidavit the first respondent deposes to a continuing process of interactions with the applicant and/or her support network since the Department became aware of the applicant's pregnancy. These interactions include communications with the applicant, her support network, other third parties or service providers and attending safety planning meetings. At these safety planning meetings (which were conducted by a facilitator), discussions concerned planning for the arrival of the applicant's baby, and the steps needed to ensure the safety of the baby once born.
Interspersed during this period were internal Department meetings. The relevant meetings were held on 13 February, 19 February and 22 February 2024.
At the meeting on 13 February 2024 (which is deposed to in par 39 of the first respondent's affidavit), those present discussed the various matters regarding the applicant and the issues of concern held by officers of the Department in relation to the applicant's ability to care for the baby once born (and any positive steps taken by the applicant). A list of all persons attending is not provided in the affidavit. It is also not clear if the first respondent attended that meeting, as the only individuals identified in the paragraph are the District Director Ms Simmons and the case worker Ms Elkins. However, there is also a reference to the first respondent taking action. The first respondent then deposes as follows:
As a result of these concerns, the decision was made for the Department to bring baby [X] into care under s37 of the Act as it was assessed that should Ms [MD] have baby [X] in her care baby would be at risk of significant emotional harm from family and domestic violence, and would be exposed to significant concerns as a result of the unhygienic home environment that posed a serious risk to the health and medical wellbeing of the child as well as the concerns around Ms [MD's] ability to consistently meet the care needs of her children that was noted in the Department's previous periods of involvement and the parenting capacity assessment that had been completed in April 2024. On this day I contacted Ms [MD]'s FINWA, Zonta and King Edwards Hospital workers to advise them of the Department's decision but stated that the Department would undertake additional safety planning around any additional measures that could be put in place.
The next internal meeting was held on 19 February 2024 and in par 44 of the affidavit the first respondent deposes that he, Ms Elkins and Ms Simmons attended this meeting. No 'decision' was made during this meeting, but rather Ms Simmons directed that additional work be undertaken:
On this day Ms Elkins and I held a further consultation with our District Director Ms Simmons in relation to safety planning for [MD]. Ms Simmons directed that additional work be undertaken to explore how [MD] had been presenting whilst in hospital in regards to her bonding, attachment and care of baby [X]. Ms Simmons also noted that the initial discussion with the refuge indicated that there was limited staff after hours and over weekends and requested additional information be sought from the refuge and the professional safety network members would be able to provide to supplement the refuge if baby [X] was in [MD]'s care.
On 22 February 2024, a further internal meeting was held. The relevant part of par 49 of the affidavit for present purposes is that:
On 22 February 2024 Ms Elkins and I met with Ms Simmons to discuss safety planning for [MD] and baby [X].
…
As a result of these concerns the decision was made to bring baby into the care of the Department under s37 of the act as the Department had assessed that [MD] had not demonstrated sufficient commitment to safety planning for baby [X] and that baby would not be safe in her care. Following this consult I emailed [MD's] support network to advise them that the Department would be continuing with the previously stated plan to Bring baby [X] into care at birth and place with the Departmental foster carer.
In par 50 the first respondent deposes as to the next steps taken:
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.
…
On this day Ms Elkins and Ms Skahill attended King Edwards Hospital and transported baby [X] to a Departmental foster carer.
A copy of the letter referred to is found at attachment EC1 of the first affidavit of Ms Cramer. The letter, addressed to the applicant, is dated 22 February 2024, and is signed by the first respondent with his name and departmental position identified. The letter provides in the first paragraph:
As a result of an investigation by authorised officers of the Department of communities, Child Protection and Family Support, Cannington District, it has been assessed that there is an immediate and substantial risk to the wellbeing of your child [X] (0). This means that your child has been taken into provisional protection and care (temporary care) under section 37 of the Children and Community Services Act 2004.
The applicant submits that the decision to take the baby into provisional protection and care was made on 13 February 2024.
The respondents submit that what occurred on 13 February 2024 was an initial or preliminary decision made prior to the birth of the baby, and so it was not and could not be acted upon. The respondents submit that when the affidavit is fairly read as a whole, it is clear that in between 13 February and 22 February 2024, the officers of the Department continued to gather further information relevant to determining the safety of the baby when born, continued to assess the applicant's housing situation, support services, behaviour in hospital after the baby was born (but before discharge) and continued to attend safety plan meetings.
The respondents submit that whilst the relevant officers in the Department may have formed an initial decision that the power in s 37(2) would likely need to be exercised, a final decision was not made until 22 February 2024, after considering all the information gathered up until that point in time. It was only after the decision was made on 22 February 2024 that the baby was taken from the applicant and placed with foster carers, and it was only on 22 February 2024 that the first respondent gave the applicant the letter advising of the decision.
I am satisfied that the operative decision for the purposes of s 37(2) of the Act was the decision made on 22 February 2024. In reaching this conclusion I have had regard to the sequential history of the events as detailed in the first respondent's affidavit (observing that it is not possible to set out each paragraph in these reasons); the date upon which the decision was carried out and the date of the letter.
I am satisfied that whilst on (and from) 13 February 2024 the relevant officers in the Department had clearly formed a view that the power under s 37(2) of the Act would need to be exercised, that must be understood in a context where planning was being undertaken as to what should happen once the baby was born and as against the history of the involvement of the Department with the applicant and her two older children and since the applicant's pregnancy. Any 'decision' made on 13 February 2024 could only be a preliminary decision as the baby had not been born at this point in time.
I am also satisfied from my review of the first respondent's affidavit that after 13 February 2024 the officers in the Department continued to engage in safety planning and gather more information relevant to any decisions that may need to be made under the Act. See in particular pars 40 to 48 of the first respondent's affidavit. I observe that at the internal Departmental meeting held on 19 February 2024, Ms Simmons directed Ms Elkins and the first respondent to undertake additional work in this regard.[33] I also observe that when Ms Elkins and the first respondent attended the third pre‑birth meeting with the applicant and her support network on 15 February 2024, the following exchange took place:[34]
Ms Matson advised that they would be placing [MD] into a refuge and requested that the Department review its position prior to actioning the s37 as Ms Djulbic had advised that [MD] would likely be induced on 19 February. I discussed the fact that the Department would continue to gather information to inform safety planning and committed to having a further consultation on 19 February 2024 however I expressed the concern that there was limited time to implement a safety plan and assess if there will be commitment and follow through from [MD].
[33] Affidavit of first respondent [44].
[34] Affidavit of first respondent [41].
I also observe that the first respondent deposes to the following occurring on 19 February 2024:[35]
On 19 February 2024 Ms Elkins contacted [MD's] support network including, the refuge, Ms Matson, FINWA and Ms Djulbic and advised that at this time the Department was still intending to proceed with the plan to bring baby [X] into care at the point of discharge but was seeking to explore further planning in relation to [MD] being at the refuge with baby [X]. Ms Elkins requested that Ms Djulbic provide information from the Hospital relating to [MD] presentation, bonding and attachment and general mother-crafting with baby, information relating to [MD'S] attentiveness to baby's daily feeding pattern and especially what this looks like for night time and [MD'S] willingness to utilise supports within the hospital such as putting baby in the nursery. Ms Elkins also asked the network to advise of their availability to play a role within [MD]'s wrap around safety and support network if baby [X] was to be in her care, including after-hours support and weekend support if available as a means to supplement the supports available from her current refuge.
[35] Affidavit of first respondent [46].
I also observe that the description of the meeting held on 22 February 2024 in par 49 of the first respondent's affidavit is consistent with those in the meeting considering all relevant information pertaining to the applicant and her baby again (including information gathered since 13 February 2024) and considering afresh whether to exercise the power under s 37(2) of the Act.
For these reasons, I conclude a final decision was not made until 22 February 2024.
However, even if I am wrong in this regard, and the decision made on 13 February 2024 was not a preliminary decision but a final decision, I find that this decision was not acted upon, in that the baby was not taken from the applicant at this time (and could not be). There is nothing in the wording of s 37(2) (when read in the context of the Act) which provides that once a decision is made under s 37(2) that the decision maker is 'functus officio' and prevented from exercising the power on a different date in relation to the same individuals, provided the relevant statutory criteria are met. It would also be contrary to the very nature and purpose of the power to impose such a limit.
In these circumstances, even if the decision made on 13 February 2024 was a final decision, it was not acted upon and it was then overtaken by the fresh decision made on 22 February 2024 based on the information known at that date and acted upon on that date. Accordingly, the relevant decision for the purposes of this application is the decision made on 22 February 2024.
Turning to who made that decision, I agree with the parties that whilst it is not expressly stated in the first respondent's affidavit that he personally made the decision, that he was the relevant decision maker. I draw that inference from the following factors: the first respondent is an authorised officer under the Act; no other authorised officer is identified in the affidavit material; the first respondent was the authorised officer who met with the applicant on 22 February 2024 and advised her of the decision; the first respondent signed the letter dated 22 February 2024; the first respondent was the Team Leader and responsible for the team managing the applicant's case; and the first respondent attended the various internal Departmental meetings, and in particular the meeting on 22 February 2024 where the decision was made.
Subjective component
The jurisdictional fact underpinning the exercise of the power in s 37(2) requires the decision maker to form a suspicion that there is an immediate and substantial risk to the child's wellbeing.
The applicant submits that this subjective element is not satisfied in this case. The applicant's primary submission is that the first respondent does not expressly state that he personally holds the requisite suspicion in his affidavit. The applicant also made submissions on the assumption that the date of the decision was 13 February 2024. Given my conclusions above, I will not repeat these. As an alternative, the applicant submits that if the decision was made on 22 February 2024, there is nothing in the affidavit evidence which demonstrates that the suspicion was of an immediate and substantial risk to the baby.
I accept that the first respondent's affidavit does not expressly state that he personally holds a suspicion that there is an immediate and substantial risk to the baby's wellbeing. The passive language in the affidavit is problematic in this regard. The respondents submit that when the affidavit is fairly read as a whole, having regard to the fact that it was prepared on an urgent basis, it is open to the court to infer that the first respondent himself held the requisite suspicion.
Having reviewed the affidavit as a whole, and the letter signed by the first respondent dated 22 February 2024, I am satisfied that it is reasonable to infer that the first respondent himself held a suspicion of an immediate and substantial risk to the baby.
I draw that inference from the same matters from which I inferred that the first respondent was the decision maker. I also draw that inference from the extent of the first respondent's involvement in the applicant's case and the decision making process as a whole. Not only was the first respondent the Team Leader, but he was also personally involved (together with the case worker) in attending safety planning meetings and communicating with the applicant and her support workers. The first respondent also attended the internal Departmental meetings that were held and therefore was personally involved in the discussions deposed to in the affidavit. In these circumstances, I infer that when the first respondent deposes to the various 'concerns' held by the Department, he is also deposing to the various concerns held by himself and the other members of his team dealing with the applicant's case. I am therefore satisfied that the first respondent personally held a suspicion.
Turning to the content of that suspicion, I have had regard to the legal principles regarding the subjective component of the condition as set out in [46] of these reasons.
The respondents submit as follows:[36]
[36] Respondents' submissions [46].
The evidence of the [First][37] Respondent is that there was a concern that, at the time of the Applicant being discharged from hospital on 22 February 2024:
[37] In the written submissions the reference is to the second respondent, but this was clarified as an error during oral submissions and should read as the first respondent.
(a) the Applicant would not return to and remain at [X] Refuge;
(b) if the Applicant did not reside at the Refuge, [baby X] would be at risk of:
(i) emotional harm through exposure to family and domestic violence; and
(ii) health and medical wellbeing risks through exposure to an unhygienic home environment; and
(iii) not having care needs consistently met;
(c) if the Applicant did reside at the Refuge, [baby X] would be at risk of not having care needs consistently met, once the Applicant was no longer subject to the level of monitoring, support and guidance that was available in the hospital, and in particular between 8pm and 8am every weeknight and on weekends (when there are limited staff at the Refuge to provide that support and guidance and monitor whether [baby X]'s care needs were being met).
The respondents rely on the content of par 49 of the first respondent's affidavit in support of this submission as to the content of the suspicion. Par 49 is a lengthy paragraph, and therefore I have not reproduced it in full in these reasons.
The respondents acknowledge that the language of the affidavit (and in particular par 49) does not use the precise words of s 37(2) of the Act, there being no express reference to 'suspects'.
However, the affidavit refers to various 'concerns'. I accept that on a fair reading of the affidavit as a whole (and in particular par 49), the 'concerns' referred to are suspicions which are directed to the risk that the applicant will be unable to care for her baby when discharged from hospital and that if discharged with the baby, there will be an immediate (from that point) and substantial risk to the baby's wellbeing.
Therefore, I am satisfied that the first respondent held the subjective suspicion required under s 37(2) of the Act.
Objective component
However, it is not sufficient for the first respondent to hold the subjective suspicion required under the Act. It is also necessary that it be a reasonable suspicion. The court must therefore consider whether the information held by the first respondent would be sufficient to induce the relevant state of mind ‑ namely, a suspicion that there is an immediate and substantial risk to the child's wellbeing - in a reasonable person.
The applicant primarily relies on the evidence contained in the affidavits of Ms Cramer to submit that at the time of the exercise of the power there were no reasonable grounds for the suspicion that there was an immediate and substantial risk to the baby's wellbeing.
The difficulty for the applicant is that the matters contained in Ms Cramer's affidavits are not the totality of the information that was before the first respondent when the decision was made. The first respondent's affidavit deposes to considerably more information, covering both the period prior to FinWA's involvement with the applicant, and since FinWA's involvement. Some of these interactions were between officers the Department and the applicant directly. If the information in Ms Cramer's affidavits is read on its own, it paints a different picture to that if all the information before the first respondent is considered.
That is not to say that the information contained in Ms Cramer's affidavits was not relevant to the decision-making process of the first respondent. The information identifies a number of positive steps and developments concerning the applicant, including positive engagement with various support services; positive interactions with and assessments from King Edward Memorial Hospital;[38] the clean hair follicle test;[39] steps being taken to clean and add security to the applicant's house;[40] future counselling sessions booked;[41] and the applicant entering a refuge.[42] Ms Cramer and also Ms Djulbic, a social worker at King Edward Memorial Hospital, express the view that in their opinion either the baby was not in any immediate risk of harm when discharged,[43] or that the baby should be placed with the applicant with the correct supports.
[38] First Cramer affidavit [9], EC2 and EC4.
[39] First Cramer affidavit [8].
[40] First Cramer affidavit [8] and EC9.
[41] First Cramer affidavit EC4.
[42] First Cramer affidavit [10] - [11], [13], EC3 and EC9.
[43] First Cramer affidavit [14] and EC2, p 10.
The first respondent's affidavit reveals that positive factors and developments were recorded and then considered during the decision-making process.[44] However, a review of the affidavit evidence as a whole reveals many other pieces of information which, in my view, are sufficient to induce the relevant state of mind ‑ namely, a suspicion that there is an immediate and substantial risk to the baby's wellbeing upon discharged from hospital - in a reasonable person. These include (but are not limited to):
[44] See, for example, first respondent's affidavit [33], [38], [39], [47].
(a)the history of the applicant's ability to care for her two older children between 2019 and 2023;[45]
(b)the history of the applicant's interactions with officers from the Department between 2019 and 2023 and the extent to which the applicant would follow through on tasks or matters she was asked to attend to or indicated she would attend to;[46]
(c)the contents of the PCA. This assessment was dated April 2023, being less than one year before the decision. While acknowledging that the applicant appears to have a substantial interest in making changes in her life, the PCA assessed the applicant as posing a 'high risk for causing physical, psychological and emotional harm' to her two older children and that her 'capacity to recognise and provide for the children's physical, social, emotional and psychological needs is poor'. The PCA recommended that the applicant attend therapy and complete a long-term stay at [redacted];[47]
(d)the history of the applicant's interactions with the Department since her pregnancy. This history reveals examples of not being able to attend meetings. The history also reveals examples where the applicant has reported having domestic violence concerns regarding the father of the baby (including as recently as 8 February 2024), but despite advising officers on two occasions that she would take steps to obtain a family violence restraining order, she did not. Further, that history reveals that on two occasions after reporting domestic violence concerns, the applicant was offered alternative housing by officers (including a room in the refuge she is now residing in) and she declined to take up that offer;[48]
(e)the applicant's inability to remain in a meeting with Ms Elkins and the first respondent where they were discussing the danger statements and the concerns of officers of the Department;[49]
(f)the applicant only spending less than 24 hours in the refuge prior to being admitted to hospital, and therefore not yet demonstrating (in light of her history) that she will go to and remain in the refuge;[50]
(g)upon discharge from the hospital (where the applicant was receiving intensive 24 hour assistance), the refuge will not be able to offer the same level of assistance, especially at night. Members of the applicant's informal network are also not permitted to attend upon the refuge and there was no plan (as at the date of discharge) for members of her formal support network to be able to attend;[51]
(h)the comments made by members of the applicant's nominated informal support network indicating a limited ability to provide support and/or concerns relating to the home environment being unsuitable for children or animals and the accuracy of the information that the applicant shares with those around her;[52]
(i)whilst her home has had some professional cleaning and most rooms in the house were now suitable, others are not yet sufficiently cleaned;[53] and
(j)the applicant not yet having received the intensive counselling services as recommended in the PCA.
[45] First respondent's affidavit AN2 - AN5.
[46] First respondent's affidavit [12] - [13] and [16], AN2 - AN5.
[47] First respondent's affidavit AN6, p 218 - 224.
[48] First respondent's affidavit [22], [26] - [27], [36] - [37].
[49] First respondent's affidavit [25].
[50] First respondent's affidavit [42], [44].
[51] First respondent's affidavit [45].
[52] First respondent's affidavit [36].
[53] First respondent's affidavit [38].
I therefore consider that the applicant has not established that the first respondent acted on a mistaken assumption or opinion as to the existence of the jurisdictional fact necessary for the first respondent to exercise the power under s 37(2) of the Act.
Disposition - issues 2 and 3 - reasonableness and taking into account an irrelevant consideration
Legal principles
In Minister for Immigration and Citizenship v Li,[54] the High Court affirmed the principle that the legislature is taken to intend a discretionary power, statutorily conferred, will be exercised reasonably. Thus, the discretion is conferred on the implied condition that the duty must be performed within the bounds of reasonableness.
[54] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] - [89].
There are two types of legal unreasonableness: process unreasonableness and outcome unreasonableness. Process unreasonableness arises where an underlying jurisdictional error has been identified in the decision-making process (eg the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality). Outcome unreasonableness arises in circumstances where, without necessarily identifying another underlying jurisdictional error, the outcome is seen by the supervising court as lacking an evident and intelligible justification.[55]
[55] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] - [89]; Jacob v Save Beelier Wetlands Inc [2016] WASCA 126; (2016) 50 WAR 313 [67] ‑ [68] (McLure P).
The task of the court in determining whether a decision is legally reasonable (or unreasonable) involves the evaluation of the nature and quality of the decision in the context of the subject matter, scope and purpose of the relevant statutory power, combined with associated common law principles concerning reasonableness in decision-making.[56] This may appear to be similar to a merits review, but it is not. The essential difference between the reasonableness ground of judicial review and a merits review is that the court is not concerned with whether it would have reached the state of satisfaction on the available material, but rather whether it was open to the decision maker, as a matter of law, to do so.[57] It is not enough that the court disagrees, or indeed emphatically disagrees, with the decision, provided the decision is rationally open to the decision maker.[58]
[56] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [78] ‑ [83]; Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145 [174].
[57] Sanders v City of South Perth [2019] WASC 226 [229] - [234].
[58] Av Corruption and Crime Commissioner [2013] WASCA 288 [123]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 367 [30].
It must be borne in mind that the test for unreasonableness is necessarily stringent, and courts will not lightly interfere with the exercise of a statutory power involving an exercise of discretion.[59]
[59] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [11]; applying Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [108] (Gageler J).
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; Minister
for 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.
Irrelevant consideration
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].
The applicant invites the court to interpret the context of this conversation as being one where the Department has made a deliberate decision not to apply for a warrant under s 35 of the Act because either the magistrate on duty would not have granted one to the Department on the facts of this case, or because of a view by the Department that the magistrate would not issue a warrant under s 35 of the Act for a discharge from hospital. The applicant submits that this is an irrelevant consideration and that it is irrational and unbelievable that a magistrate would not utilise the power to grant a warrant if all the statutory criteria are met.
There are two points to make at the outset about the affidavit evidence. The first is that it is not clear on the evidence that the past experience in relation to s 35 warrants formed part of the decision making in this case. It is not referred to in these terms in par 49 of the first respondent's affidavit. Rather, the issue seems to have arisen as a result of a question from Ms Cramer to the first respondent after the decision had been made and communicated.
The second is that it is also not clear to me on the basis of the affidavit evidence that the first respondent was at any time advising that he and the Department did not apply for a warrant because they considered they would not be granted one on the strength of their case. I consider the first respondent's affidavit evidence read fairly as a whole to be that the Department had, in the past, experienced inconsistency in obtaining a warrant for a case involving a discharge from hospital, with some magistrates indicating that s 37 of the Act was the appropriate provision in such a case.
The applicant submits that as the first respondent's affidavit was prepared after Ms Cramer's, the lack of an express disownment of Ms Cramer's version of events should count against this interpretation. However, I observe that no witnesses were cross examined on their affidavit evidence. Further, whilst the second Cramer affidavit was filed before the first respondent's affidavit, it is not clear that the first respondent's affidavit was prepared after receiving the second Cramer affidavit. In par 8 of the first respondent's affidavit he refers only to swearing his affidavit in response to the first Cramer's affidavit. In these circumstances, I proceed with some caution in relation to the applicant's submission of the extent of the evidence.
However, putting questions regarding the affidavit evidence to one side, a decision maker will not be bound to take a consideration into account, or to ignore it, unless the statute expressly so requires, or the requirement to take the consideration into account, or take no account of it, can be implied from the subject matter, scope and purpose of the statute.[62]
[62] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40; Sieffert v Prisoners Review Board [2011] WASCA 148 [192].
There is nothing in the Act which either requires an authorised officer to expressly exclude other intervention options before exercising the power under s 37(2), or provides that an authorised officer cannot have regard to other intervention options under the Act before exercising the power under s 37(2) of the Act. In relation to the latter, considering other intervention options may (in appropriate cases) fall within the scope of the principle in s 9(f) of the Act which provides that intervention action should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing.
Accordingly, I do not consider the mere fact that an authorised officer takes into account the viability of other forms of intervention as part of the decision making process (if that is what occurred here and it is by no means clear that it did) means that the authorised officer has taken into account an irrelevant consideration.
The real question which seems to arise in relation to this aspect of the evidence is whether the first respondent has acted for an improper purpose in exercising the power under s 37(2) of the Act. For the reasons set out above in relation to my conclusions regarding the existence of the required elements of the jurisdictional fact, and my reasons set out below in relation to the reasonableness of the exercise of the discretion, I do not consider it can be established on the evidence before the court that the first respondent acted for an improper purpose in this case.
Outcome unreasonableness
By way of overview, the applicant submits that when regard is had to the evidence of the applicant's engagement and progress since the involvement of FinWA (as outlined and evidenced in the two affidavits of Ms Cramer), a conclusion that it was in the best interests of the child to remove him from the applicant is irrational in that it lacked an evident and intelligible justification.
The respondents submit that when the affidavit evidence and the decision is considered as a whole, there is nothing in the exercise of the discretion that leads to the conclusion that the decision was irrational or lacking an evident and intelligible justification.
I do not accept the applicant's submission. The first respondent was required to balance the various mandatory factors in s 8 and s 9 of the Act and ask what was in the best interests of the child. As outlined by Mitchell J in YPW v Chief Executive Officer, Department for Child Protection, the various factors will not all point one way in any one case and the decision maker will be called upon to weigh the various factors and make a decision as to what is in the best interests of the child. The precise weight to be given to those factors is a matter for the first respondent.
In terms of the subparagraphs of s 8 of the Act, in the present case the affidavit evidence demonstrates the first respondent and the Department had identified a risk of harm to the baby based on the applicant's past history of caring for her two older children; the PCA assessment; the hygiene issues as her house; the threats of domestic violence the applicant had identified; the uncertainty as to whether the applicant would attend/remain in the refuge; and the limitations on the extent of support services offered in the refuge in comparison to the hospital in light of the applicant's past ability to care for her children (s 8(1)(a) of the Act).
The first respondent had also identified information indicating the limited ability of the applicant to protect the baby form harm and provide for their needs. In addition to the matters referred to in the above paragraph, the first respondent had identified the applicant's failure to obtain a family violence restraining order or to take up two previous offers of alternative accommodation in response to the threats of domestic violence; the applicant's inconsistent information provision in the past and the warning of that from her informal support network; and the limitations on the extent of support services offered in the refuge (both in terms of the services offered and who may attend the refuge) in comparison to the hospital. However, the first respondent had also identified positive factors in this regard, including the applicant's recent clean hair follicle test; her recent positive engagement with formal support services; her desire and attitude to change; her successful bonding in hospital and the positive feedback from others (s 8(1)(b), s 8(1)(c), s 8(1)(e) of the Act).
There are also clear benefits to both baby and mother in the two being able to remain together not just generally, but initially, to establish bonding and to facilitate breastfeeding. This is reflected in the decision that the applicant and the baby remain together whilst in hospital. At this stage in the baby's life the applicant is the central relationship in the baby's life (s 8(1)(d), s 8(1)(h), s 8(1)(k) and s 8(1)(l) of the Act).
Some of the factors in s 8(1) are of less significance in the present case, including the views expressed by the child (s 8(1)(f)), s 8(1)(i), s 8(1)(j), s 8(1)(la) of the Act).
The principles in s 9 of the Act also do not all point one way. In terms of factors supporting the baby remaining with the applicant, there are the principles that the applicant has the primary role in safeguarding and promoting the wellbeing of her baby and that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parent in this regard. The first respondent's affidavit reveals that he and the Department were aware of these principles and continued to engage with the applicant and her support network and plan for options involving the applicant (s 9(a) and s 9(b) of the Act).
However, also relevant are the principles that every child should be cared for and protected from harm and should live in an environment free from violence and should have stable, secure and safe relationships and living arrangements. The first respondent had identified concerns in this regard (s 9(c), s 9(d), s 9(e) of the Act).
The first respondent and officers of the Department had been engaging with the applicant and her support network since becoming aware of her pregnancy (and before) and exploring different options (s 9(gb), s 9(k) of the Act).
Other principles are not relevant or are of less significance in the present case (s 9(ea), s 9(g), s 9(ga), s 9(ia), s 9(i), s 9(l) of the Act).
Section 9(f) of the Act identifies the principle that intervention action (which includes the exercise of the power under s 37(2) of the Act) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. It is clear from the first respondent's affidavit that this has been considered as part of the decision making process. In particular, the first respondent's consideration of the positive steps made by the applicant in the months prior to the baby's birth and whilst the applicant was in hospital. However, for the reasons set out in par 49 of the first respondent's affidavit, he reached a conclusion that upon discharge from hospital the only reasonable way to safeguard and promote the baby's wellbeing was to exercise the power under s 37(2) of the Act.
As outlined earlier in these reasons, the role of the court in the present case is not to decide where the best interests of the baby lie. That role falls to the Children's Court when considering the second respondent's application for a protection order.
Whilst no decision is simple and straightforward under the Act, having considered the affidavit evidence as a whole, I do not consider the decision that it was in the best interests of the baby to remove him from the applicant on a temporary basis upon the applicant's discharge from hospital could be said to be obviously disproportionate or lacking any evident and intelligible justification such that it is unreasonable and therefore outside the bounds of a lawful decision.
Disposition - issue 4 - failure to accord procedural fairness
The applicant also alleges jurisdictional error on the part of the first respondent on the basis that the first respondent failed to accord the applicant procedural fairness before exercising the power.
The respondents' primary submission is that, properly construed, there is no obligation to accord the applicant procedural fairness before the power in s 37(2) of the Act is exercised. The respondents' secondary submission is that even if such a duty is imposed, the applicant has not identified what information she was not provided with, or otherwise how the first respondent has failed in that duty.
The Court of Appeal outlined the circumstances in which an obligation to accord procedural fairness in the exercise of a statutory power will be implied in the decision of Commissioner ofPolice v Ferguson[63] as follows:
[63] Commissioner of Police v Ferguson [2019] WASCA 14 (Buss P, Murphy JA agreeing).
75The implication of the rules of procedural fairness in a statute is arrived at by a process of construction. In Saeed, French CJ, Gummow, Hayne, Crennan and Kiefel JJ said the implication proceeded upon 'the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann (Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ, at 451 per Jacobs J; [1977] HCA 26)' [12]. This assumption is derived from the principle of legality referred to by Gleeson CJ in Electrolux Home Products Pty Ltd v The Australian Workers' Union. See also Momcilovic v The Queen.
76The principles and presumptions of statutory construction, to the extent they are not qualified or displaced by an applicable interpretation statute, are part of the common law of Australia. In Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ explained:
It is in this sense that one may state that 'the common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100 - 101 [39] - [41]). If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive [97].
77When deciding whether the exercise of a statutory power is conditioned by the rules of procedural fairness, it is necessary to take into account the practical context in which the decision‑maker must consider whether to exercise the power. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.
78Procedural fairness is concerned with procedures rather than with outcomes. See Minister for Immigration and Border Protection v WZARH.
79Brennan J emphasised in Kioa v West that the presumption that the rules of procedural fairness condition the exercise of a statutory power applies to 'any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public' (619). However, his Honour then qualified that statement as follows:
Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised. Thus in Pearlberg v Varty ([1972] 1 WLR 534; [1972] 2 All ER 6), when a commissioner gave leave ex parte to raise an assessment to tax, the taxpayer challenged the decision although his legal rights were unaffected by it. The decision was held to be valid. The text of the statute, the kind of limited interest that was affected and the statutory provision allowing the taxpayer a full opportunity to challenge his liability to tax at a later stage displaced the presumption (619 - 620).
(emphasis added)
80When it is asserted that the rules of procedural fairness do not condition the exercise of a statutory power, the question is whether the legislation, on its proper construction, displays a legislative intention to exclude the rules. See Re Refugee Review Tribunal; Ex parte Aala; Ex parte Miah [53], [90], [126] - [127].
81As Merkel J noted in Wasfi v Commonwealth of Australia, a legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power' (28).
(citations omitted).
If observance of the rules of procedural fairness is a condition of the grant and exercise of the statutory power, the question then becomes what is the content of the obligation in the circumstances of the particular case. As outlined by the Court of Appeal in Defendi v Szigligeti,[64] and approved in Frigger v Frigger,[65] the content of procedural fairness is not fixed. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances and an analysis of the relevant statute.
[64] Defendi v Szigligeti [2019] WASCA 115 [45] - [48].
[65] Frigger v Frigger [2023] WASCA 103 [38] ‑ [41].
The applicant submits that there are many different factual circumstances in which the power under s 37(2) of the Act may be exercised. The applicant submits that this is not a case of, for example, a police officer being faced with an urgent situation in which a child is in danger. Rather, this is a situation where officers of the Department have been engaging with the applicant and her support network for some months. In these circumstances, the applicant submits that a duty to accord procedural fairness arises. The applicant places particular reliance on the High Court decision of Kioa v West[66] and the observations that the rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.
[66] Kioa v West (1985) 159 CLR 550, 563 (Gibbs CJ); 583 ‑ 585 (Mason J); 601 (Wilson J); 612 - 614 (Brennan J); 632 - 633 (Deane J).
I have some difficulty in concluding that, properly construed, the exercise of the power in s 37(2) of the Act obliges the authorised officer to first accord the parent or guardian of the child in question procedural fairness. As a matter of construction, the power in s 37(2) of the Act is directed to situations in which there is a suspicion of a risk of immediate and substantial harm to the child and where the officer considers that it is in interest of the child to take the child into provisional care. It is a power which does not require the authorised officer to confirm that there is in fact a risk of immediate and substantial harm, but rather a suspicion of that risk is sufficient. It would appear contrary to the purpose of the section to, in those circumstances, impose an obligation that first procedural fairness be accorded to the parent or guardian. Further, s 37(2) permits the authorised officer to take a child into provisional care for only a short period of time. The second respondent must either return the child within two days, or commence an application for a protection order in the Children's Court within two days. It is the Children's Court which then considers and determines what should happen to the child, and the parent or guardian is accorded procedural fairness at that stage of the statutory process.
In those circumstances, as a matter of construction, I have difficulty in concluding that s 37(2) of the Act is conditional upon first according the parent or guardian procedural fairness given the factual circumstances in which it must be exercised. That position is not altered by the factual situation in the present case, or in a case where the Department has been engaging with the parent or guardian for some time, provided the authorised officer forms the requisite suspicion and exercises the discretion in accordance with the Act. Again, to require procedural fairness to be accorded would be contrary to the purpose of the provision in its statutory context.
However, it is not necessary to form a final view on this issue in the context of this application, because even if the first respondent was required to accord the applicant procedural fairness, I do not consider that the applicant has established any such failure.
Even if the exercise of the power in s 37(2) of the Act is conditional upon according the applicant procedural fairness, the scope and content of that duty must be considered having regard to the statutory framework in which the discretion is being exercised and the facts of the case. The content will, ordinarily, be less than the content required for, by way of example, a protection order application which is not made in circumstances where there is a suspicion of risk of imminent and substantial harm to a child.
I observe that when pressed in oral submissions as to precisely what information the applicant was not provided with, counsel was unable to clearly articulate the information. Counsel referred to the applicant not being provided with a copy of danger statements, the PCA or being given clear 'bottom line requirements' for the applicant to take her baby home from hospital.
The first respondent deposes to providing the applicant and her support network with information regarding their bottom line requirements (and the details of them) at a pre-birth meeting held on 23 January 2024.[67] The applicant had previously been provided with a letter outlining these matters in the context of any possible reunification with her two older children.[68] The first respondent also deposes to providing information regarding danger statements in a pre-birth meeting on 12 December 2023.[69]
[67] First respondent's affidavit [31].
[68] First respondent's affidavit [21] AN7: the letter is dated 5 September 2023, but was provided to the applicant in a pre-birth meeting held on 6 October 2023.
[69] First respondent's affidavit [25].
In terms of the PCA, the evidence before the court is not sufficient to clearly establish whether the applicant herself had received a copy of the PCA. There is a copy of the letter included in the first respondent's affidavit which appears to indicate that the PCA was provided by the Children's Court to a person who counsel for the respondents was instructed (from the bar table) was the previous solicitor for the applicant.[70] However, notes from the meeting held on 23 January 2024 reveal that the applicant did not have the PCA, or at the very least her support network did not have, a copy of the PCA.[71]
[70] First respondent's affidavit, AN6, p 199.
[71] First Cramer affidavit EC10.
However, even if the applicant was not provided with the PCA (or any particular document), that does not mean that there has been a failure to accord procedural fairness. It is not the provision of the document which is the issue, but whether the applicant has been informed of the substance of the matters against her interest which may be taken into account by the decision maker and given a reasonable opportunity to respond to them in the timeframe permitted by the circumstances. Counsel for the applicant was unable to identify what that information was with any precision, or that any such failure was material. Further, even if there had been a failure to provide information or a reasonable opportunity to respond, once the time for discharge from hospital was reached, it is difficult to see how the content of any obligation to accord procedural fairness to the applicant could, as a matter of statutory construction and fairness, prevent the exercise of the power at the point the requisite suspicion was formed and the discretion was being exercised in the best interests of the baby. In my view, the real question in the present circumstances is whether the jurisdictional facts necessary for the exercise of the power are established and whether the decision has been exercised in accordance with the requirements of the Act, including in the best interests of the baby.
In these circumstances, I am not satisfied that the applicant has established that there has been a failure to accord the applicant procedural fairness.
For completeness, I observe that a failure to engage with a parent or guardian to provide all appropriate information may, even if not amounting to a failure to accord procedural fairness, raise questions as to whether the decision maker has in fact exercised their decision-making power or exercised it in good faith. However, no submissions to this effect were made by the applicant, and the affidavit evidence (when read as a whole) does not reveal either of these to have occurred in this case.
Disposition - issue 5
In light of my conclusions in relation to issues 1 - 4 it is not necessary to determine issue 5 which concerns remedies.
Conclusion
In light of my conclusions in relation to the above issues, on 27 February 2024 I made the following orders:
1.The applicant has leave to amend the application for judicial review in the form of the amended application filed on 26 February 2024.
2. The application is dismissed.
3. There is no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
8 MARCH 2024
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