Te v Chief Executive Officer, Department of Communities - [2024] WASC 399

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TE & ANOR -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2024] WASC 399
CORAM:   LEMONIS J
HEARD:   21 OCTOBER 2024
DELIVERED          :   30 OCTOBER 2024
FILE NO/S:   SJA 1055 of 2024
BETWEEN:   TE
First Appellant
AE
Second Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
First Respondent
ME
KE
OE
Second Respondents

ON APPEAL FROM:
For File No:   SJA 1055 of 2024
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MARTELLA
File Number            :   PER/PC 368/2024, PER/PC 369/2024 & PER/PC 370/2024

Catchwords:

Children taken into provisional protection and care without warrant under s 37 of the Children and Community Services Act 2004 (WA) (the Act) - Chief Executive Officer of the Department of Communities commences protection application within timeframe stipulated by the Act - In accordance with the Act and a Children's Court practice direction, the application was not supported by an affidavit - At the initial hearing of the application, the Children's Court magistrate made an order that the children be taken into and remain in provisional protection and care - Whether absence of affidavit evidence had the result that the children were no longer in provisional protection and care by the time the order was made - Whether the learned magistrate could not discharge her Honour's function in making the order when there was no affidavit evidence before the court

Legislation:

Children and Community Services Act 2004 (WA)
Children’s Court of Western Australia Act 1988 (WA)
Criminal Appeals Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Leave to appeal refused on all grounds

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	Ms F Low
Second Appellant	:	Ms F Low
First Respondent	:	Ms J Buller
Second Respondents	:	Not applicable

Solicitors:

First Appellant	:	Fiona Low Barrister & Solicitor
Second Appellant	:	Fiona Low Barrister & Solicitor
First Respondent	:	State Solicitor's Office
Second Respondents	:	Not applicable

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

PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
S (A child) v Chief Executive Officer of the Department for Child Protection [2008] WASC 229
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123

LEMONIS J:

The appellants are the parents of the second respondents, who are all under eighteen years of age.
This appeal is from an interim order made by the learned magistrate sitting in the Children's Court that each child be taken into and remain in provisional protection and care. The interim order was made in protection proceedings brought by the first respondent under the Children and Community Services Act 2004 (WA) (the Act). The interim order was made at the initial hearing in respect of those proceedings.
Shortly prior to the commencement of the protection proceedings, officers of the Department of Communities had taken the children into provisional protection and care without a warrant. This appeal concerns the application of the Act in such circumstances.
The appellants' principal contention is that by the point in time that the learned magistrate made the interim order, the children were no longer under provisional protection and care because an affidavit in support of the protection proceedings had not been filed. For the same reason, the appellants contend that the learned magistrate erred in law in making the interim order, alternatively the making of that order occasioned a miscarriage of justice.
There is an urgency to the resolution of this appeal. Pending the resolution of the appeal, neither the appellants nor the first respondent have sought a substantive hearing in the Children's Court to determine the interim care arrangements for the children.
I did not require that the children be separately represented on this appeal. I consider that in the circumstances of this appeal their interests are adequately protected by the submissions advanced by the first respondent.

Legislative basis for the appeal

The legislative basis for the appeal arises from a combination of the Act, the Children's Court of Western Australia Act1988 (WA) (the Children's Court Act) and the Criminal Appeals Act 2004 (WA) (the CA Act).
The learned magistrate made the interim order under s 133(2)(b) of the Act, which appears in pt 5 of the Act.
Pursuant to s 42(1) of the Children's Court Act, the appellants, as the parents of the children, may appeal the making of an order by a magistrate of the Children's Court made under pt 5 of the Act. This right of appeal is not limited to final orders.[1]
[1] PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 [33]. See also S (A Child) v Chief Executive Officer of the Department for Child Protection [2008] WASC 229 [15] - [50].
Section 42(1) also provides that the appeal is made in accordance with pt 2 of the CA Act as if the order appealed against were a decision by a court of summary jurisdiction. Part 2 of the CA Act is directed to criminal appeals from courts of summary jurisdiction. Self-evidently, this is not a criminal appeal. Nonetheless, pt 2 of the CA Act applies to the appeal.
Section 8 of the CA Act sets out the grounds on which an appeal brought under pt 2 may be made. Such grounds include:
1.the learned magistrate made an error of law or fact, or of both law and fact: s 8(1)(a)(i); and
2.there has been a miscarriage of justice: s 8(1)(b).
Leave of this court is required for each ground of appeal: s 9(1). Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding: s 9(2).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of the appellants, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[2]
[2] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45].
Further, s 42(2) of the Children's Court Act provides that a person who has appealed, or is entitled to appeal, under s 42(1) may apply to a judge for an order relating to the placement of the children pending the final disposition of the proceedings the subject of the appeal. Section 42(2) provides that the judge may make such order as in the circumstances seems appropriate having regard primarily to the welfare of the child. The definition of 'judge' in s 3 of the Childrens Court Act does not extend to a Supreme Court judge hearing an appeal under s 42(1).

Principles of statutory construction

This appeal requires me to construe the Act.
The principles of statutory construction were recently summarised in the joint reasons for decision of the Court of Appeal in Prichard v M 6:8 Legal Pty Ltd.[3] Their Honours explained:[4]
This court recently reiterated the importance of statutory text to the exercise of statutory construction in Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd. Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (citations omitted)
(footnotes omitted)
[3] Prichard v M 6:8 Legal Pty Ltd[2024] WASCA 4.
[4] Prichard[41].
Their Honours also said:[5]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted… Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
(footnotes omitted)
[5] Prichard[43] ‑ [44].
Further, in the joint judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[6] their Honours observed:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(footnotes omitted)
[6] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].

Grounds of appeal

The appellants advance four grounds of appeal. They are:
1.In making an Order that the Children remain in provisional protection and care, the learned magistrate acted outside her jurisdiction, as without evidence on oath supporting the seizure of the Children pursuant to s 37 of the Children & Community Services Act 2004, the Chief Executive Officer was no longer their legal guardian.
2.Alternatively, there has been a miscarriage of justice in that the learned magistrate failed to consider the legal consequences of the absence of evidence on oath supporting the Chief Executive Officer's seizure of the Children pursuant to s 37 of the Children & Community Services Act 2004.
3.Alternatively, there has been an error of law in that the learned magistrate relied upon unsworn material filed by the Chief Executive Officer in support of a Protection Order (time‑limited) dated 30 July 2024, for the purpose of making an Order pursuant to section 133(2)(b) of the Children & Community Services Act 2004 in circumstances where the Children had been seized pursuant to s 37 of the Children & Community Services Act 2004.
4.Alternatively, there has been a miscarriage of justice in that the learned magistrate relied upon unsworn material filed by the Chief Executive Officer in support of a Protection Order (time-limited) dated 30 July 2024, for the purpose of making an Order pursuant to section 133(2)(b) of the Children & Community Services Act 2004 in circumstances where the Children had been seized pursuant to s 37 of the Children & Community Services Act 2004.
Having regard to how the appellants' argument was presented in written and oral submissions, the appellants' grounds can be distilled to the following propositions:
1.The children ceased to be in provisional protection and care at the point when the learned magistrate chose not to consider the circumstances of their apprehension. The appellants also say that the learned magistrate could not have done so in any event in the absence of cogent evidence.[7]
2.The provisional protection and care was brought to an end because in the absence of affidavit evidence, the Children's Court could not perform its judicial function in respect of the children.[8]
3.The learned magistrate could only discharge her judicial function in making the interim order if her Honour had evidence on oath that justified the children remaining in provisional protection and case. In the absence of such evidence, the learned magistrate made an error of law in making the interim order, alternatively the making of that order occasioned a miscarriage of justice.
[7] Appeal hearing, 21 October 2024, ts 71.
[8] Appeal hearing, 21 October 2024, ts 71.
The appellants have not sought judicial review of the decision to take the children into care under s 37.[9] The appellants have also not sought an order under s 42(2) of the Children's Court Act for the return of the children pending the resolution of the protection proceedings.
[9] See for example, YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
It is not quite clear to me what the appellants contend the learned magistrate ought to have done.
In written submissions in reply, the appellants contend that the children should have been returned to the care of the appellants immediately after the hearing before the learned magistrate.[10]
[10] Appellants' responding submissions filed 4 October 2024, par 15.
At the appeal hearing, I asked the appellants' counsel what the appellants contend that the learned magistrate should have done. The immediate answer was that the learned magistrate ought to have said:[11]
Mr Department or Ms Department, my role at this first hearing is to scrutinise the circumstances of apprehension, and given that you are also intending to apply for an interim order, I am not prepared to make that - those orders in the absence of any evidence on oath; go away and give me some.
And for the next week I will extend the order - I will allow the children - on the basis of what you say to me, I will accept that there is such risk to these children that they should stay in a place other than with their parents, and we can have an argument in a week or whenever it's urgently listed on the basis of factual material that can be scrutinised, cogent, factual - credible, cogent, factual material that can be scrutinised in the discharge of judicial function.
[11] Appeal hearing, 21 October 2024, ts 67.
As can be seen, this answer runs counter to the appellants' written submissions that the learned magistrate should have ordered the immediate return of the children. I pointed this out to the appellants' counsel, who then revised her answer to reiterate what was put at the hearing before the learned magistrate, namely:[12]
… I suggested to her Honour that the Department's failure to comply - the absence of evidence - meant that the children were no longer in provisional protection, and care, and should be returned to their parents.
[12] Appeal hearing, 21 October 2024, ts 68.
Ultimately, it would seem that that the appellants contend that there is no lawful basis upon which the children should remain in the care of the first respondent because:
1.the provisional protection and care of the children has come to an end; and
2.the interim order was affected by an error of law or occasioned a miscarriage of justice.

The relevant circumstances

The circumstances giving rise to this appeal can be relatively briefly stated. That they can be briefly stated does not for one moment mean that those circumstances are not of significance to the children, and to the appellants.
On Saturday 27 July 2024, officers from the Department of Communities and members of the WA Police Force jointly attended at the appellants' family home when the appellants were not there. The officers of the Department of Communities took the children into provisional protection and care pursuant to s 37 of the Act and placed the children in the care of their maternal grandmother. At the time the children were taken, KE was 11 years of age (KE is now 12), ME was 9 (ME is now 10) and OE was 8 (OE is still 8).
By 30 July 2024, the first respondent had commenced a 'protection application' (as described in the Act) in the Children's Court in respect of each child. The application was constituted by two documents, being an 'Application Protection and Care of Children' and an 'Application initiating care proceedings'. I will describe these two documents together as the application.
The application in respect of each child was brought under s 44 of the Act on the ground of neglect or risk of neglect. That ground relies on s 28(2)(c)(v) of the Act. Each application sought as a final order a protection order (time-limited) in relation to each child. That order was sought for a period of two years. Each application also sought an interim order that each child remain in provisional protection and care.
The applications were supported by a three page report of Ms Haxton dated 29 July 2024. Ms Haxton is a child protection worker. The report identified neglect as the factor that was impacting on the appellants' parenting of the children. The report also set out over two pages the reasons each child had come into care.

The hearing before the learned magistrate on 2 August 2024

The applications came on for an initial hearing on 2 August 2024 before the learned magistrate. The applications were listed in a general list.
The appellants were represented by counsel, being counsel who represented the appellants on this appeal. The first respondent was represented by counsel. Ms Haxton participated in the hearing by video link.
The appellants' counsel said that she was 'not arguing about how [the children had] been apprehended'. Rather, the appellants' counsel submitted that for the Children's Court's jurisdiction to be engaged there needed to be some evidence and that if there is no evidence supporting the children remaining in care, then the children should be returned. [13]
[13] Hearing, 2 August 2024, ts 6, ts 7, ts 10.
The appellants had not filed any application in the Children's Court. The learned magistrate initially sought to facilitate the prompt listing for hearing of an interim placement application and the making of orders for the filing of affidavit evidence.[14] The appellants' counsel pressed that in the absence of any evidence, the court did not have any jurisdiction to confirm that the children remain in care.[15] The learned magistrate decided to adjourn the applications through to 2.15 pm that day as her Honour had a significant list.[16]
[14] Hearing, 2 August 2024, ts 8.
[15] Hearing, 2 August 2024, ts 10.
[16] Hearing, 2 August 2024, ts 10.
When the hearing of the application resumed, the appellants' counsel maintained that the children must be returned to their parents.[17] The appellants' counsel submitted that the taking of the children needs to be judicially sanctioned at the first available hearing and there was no evidence before the court entitling the Department of Communities to remain the legal guardian of the children.[18] In the alternative, the appellants' counsel made an oral application that there be an interim order that the children be returned to the parents under s 133(2)(a) of the Act.[19] There was no written application to that effect before the Children's Court.
[17] Hearing, 2 August 2024, ts 14 - ts 16.
[18] Hearing, 2 August 2024, ts 16.
[19] Hearing, 2 August 2024, ts 16.

Counsel for the first respondent submitted that the children were in provisional protection and care by operation of s 37 of the Act. Counsel for the first respondent said the interim order sought by the first respondent 'would just be confirming that status' and it 'makes it far easier for dealing with other agencies … to have such an order'. [20]
[20] Hearing, 2 August 2024, ts 17.
The learned magistrate delivered short oral reasons. The learned magistrate found that the first respondent had complied with the timeframe to file the application and also had complied with the requirements under s 44 of the Act in terms of the documents to be filed and served.[21]
[21] Hearing, 2 August 2024, ts 18 - ts 19.
The learned magistrate also said that she had read the application and report in support. The learned magistrate said that the report raised 'significant neglect concerns' in respect of the children. The learned magistrate said those concerns arose predominantly from allegations that the children had been left unsupervised for days.[22]
[22] Hearing, 2 August 2024, ts 18.
The learned magistrate ultimately said that in the circumstances, she was going to make the s 133(2)(b) order in respect of each child.[23] Her Honour made an order in respect of each child that:
Pursuant to s 133(2)(b) of [the Act], and until further order of the court, the child be taken into and remain in provisional protection and care.
[23] Hearing, 2 August 2024, ts 19.
The learned magistrate then sought to facilitate an expeditious hearing of an application by the appellants for an interim order seeking the return of the children to them or, alternatively, the placement of the children at the paternal grandparents' home. The matter was ultimately adjourned through to 26 August 2024.
As matters transpired, the appellants did not make an application for an interim order. It seems the appellants have decided to focus on this appeal in the hope it will result in the children being returned to them, as opposed to seeking the return of the children by way of a substantive hearing in the Children's Court.

The relevant legislative provisions of the Act

Introductory provisions

Section 6 sets out the objects of the Act as follows:
The objects of this Act are -
(a) to promote the wellbeing of children, other individuals, families and communities; and
(b) to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c) to encourage and support parents, families and communities in carrying out that role; and
(da)to support and reinforce the role and responsibility of parents in exercising appropriate control over the behaviour of their children; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e)to protect children from exploitation in employment.
Section 7 of the Act provides that in performing a function under the Act in relation to a child the paramount consideration is the best interests of the child.
Section 8 sets out the matters which must be taken into account in determining what is in the best interests of a child. As might be expected, those matters are extensive. They reflect that the determination of what is in the best interests of a child can be a complex issue, which requires an evaluative judgment of many different factors that may not necessarily point in the same direction.

Protection and care

Part 4 of the Act addresses the protection and care of children.
Section 28(1) of the Act defines the word 'neglect' to include failure by a child's parents to provide, arrange, or allow the provision of adequate care for the child. Relevantly, s 28(2)(c)(v) provides that a child is in need of protection if the child has suffered, or is likely to suffer, harm as a result of neglect and the child's parents have not protected or are unlikely or unable to protect the child from harm or further harm of that kind. The applications are brought on this ground.
Section 29(1) of the Act provides that a reference to a child being in or taken into or placed in provisional protection and care is a reference to a child being in, taken into or placed in the care of the first respondent.
Section 29(3) of the Act sets out when a child ceases to be in provisional protection and care. It is of importance to this appeal, so I will set it out in full:
(3) A child ceases to be in provisional protection and care if -
(a)the child is returned to or placed in the care of a person under section 38(2) or (3)(b); or
(b)the Court makes an interim order under section 133(2)(a) that the child be returned to or placed with a parent of the child; or
(c)the Court makes an interim order under section 133(2)(c); or
(d)the Court makes a protection order in respect of the child or refuses to make such an order.
Section 32(1) of the Act provides that if the first respondent determines that action should be taken to safeguard or promote a child's wellbeing, the first respondent must take one or more of the steps set out in s 32(1). One of those steps is:[24]
… take, or cause to be taken, intervention action in respect of the child.
[24] Section 32 (1)(e) of the Act.
There are three types of intervention action under the Act. First, making a protection application. Second, making an application for a warrant under s 35 of the Act to take the child into provisional protection and care. Third, taking the child into provisional protection and care without a warrant under s 37 of the Act.[25]
[25] Section 32(2) of the Act.
Section 35 provides that an authorised officer who believes that a child is in need of protection may apply to a judge or magistrate for a provisional care and protection warrant. An authorised officer is an officer designated by the first respondent under s 25 of the Act as an authorised officer.
A provisional protection and care warrant authorises any authorised officer or police officer to take the child into provisional protection and care (amongst other things).[26]
[26] Section 123 of the Act.
The authorised officer who applies for a provisional protection and care warrant must believe the child is in need of protection and must also be unable to find the child, or have at least one of the beliefs set out in s 35(1)(b), (ca) and (c). Broadly speaking, those beliefs are directed to concerns regarding the welfare of the child.
The judge or magistrate to whom the application is made may issue the warrant if satisfied:[27]
(a)that there are reasonable grounds for the authorised officer to believe that the child is in need of protection; and
(b)that -
(i)the authorised officer has been unable to find the child; or
(ii)there are reasonable grounds for the authorised officer to have a belief referred to in subsection (1)(b), (ca) or (c).
[27] Section 35(3) of the Act.
The application must be made in accordance with s 120.[28] Amongst other matters, this requires that the application is made, and any information in support of it is given, on oath.[29]
[28] Section 35(2) of the Act.
[29] Section 120(3) of the Act.
Section 36 applies where a child is taken into provisional protection and care following the execution of a s 35 warrant. Section 36(2) requires the CEO to make a protection application in respect of the child as soon as practicable after the child is taken. And, where the child is taken into care outside of a prescribed area, that application must be brought no later than 2 working days after the child is taken. Section 36(3) provides that the Children's Court must endeavour to ensure that the first listing date for the protection application is not more than 3 working days after the application is made.
Section 37 of the Act permits an officer to take a child into provisional protection and care without a warrant in certain circumstances. An officer is defined as an authorised officer or a police officer.[30]
[30] Section 37(1) of the Act.
Section 37(2) of the Act provides:
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.
Section 37(4) of the Act provides:
As soon as practicable after a police officer takes a child into provisional protection and care under this section, the police officer must notify the CEO, in a manner approved by the CEO, of his or her action and the reasons for it.
Section 37(5) of the Act provides that an officer does not need a warrant to exercise the powers in s 37.
As Mitchell J (as his Honour then was) in YPW v Chief Executive Officer, Department for Child Protection[31] observed in respect of the exercise of a power under s 37(2):
… the officer is not necessarily exercising a power which will see the child removed from his or her parent or other carer for an extended period of time. The removal of the child from the care of its parent which may result from the exercise of power under s 37(2) of the Act will only continue for so long as the Children's Court allows, once it has had an opportunity to assess the situation. This may be significant where the determination of the best interests of a child involves balancing the harm which may result if the child is not taken into care against the harm which may result from the separation of the child from its parent. The separation which results from the exercise of power under s 37(2) of [the Act] is not permanent, and will continue only for so long as the Children's Court allows.
[31] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [191].
Section 38 of the Act applies where a child is taken into provisional protection and care under s 37 of the Act. Section 38 is of particular importance to this appeal, so I will set it out in full:
38.CEO's duties etc. if child taken into provisional protection and care without warrant
(1)This section applies in relation to a child who is taken into provisional protection and care under section 37.
(2)If the child is not already the subject of protection proceedings when the child is taken into provisional protection and care and the CEO decides not to make a protection application or other application under this Part in respect of the child, then, unless subsection (4A) applies, the CEO must ensure that, as soon as practicable after the child is taken into provisional protection and care, the child is returned to or placed in the care of -
(a) a parent of the child; or
(b) a person who was providing day-to-day care for the child at the time the child was taken into provisional protection and care; or
(c) with the consent of a parent of the child, any other person.
(3)If the child is already the subject of protection proceedings when the child is taken into provisional protection and care, then, unless subsection (4A) applies, the CEO must -
(a) make an application for an interim order under section 133(2)(b) that the child is to remain in provisional protection and care; or
(b) ensure that the child is returned to or placed in the care of a person referred to in subsection (2)(a), (b) or (c),
as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.
(4A) If the child is already in the CEO's care when the child is taken into provisional protection and care, the CEO may make any arrangement for the care of the child that the CEO considers appropriate.
(4) If the CEO decides to make a protection application or other application under this Part in respect of the child, the CEO must make the application -
(a)if the child is taken into provisional protection and care in a prescribed area of the State, as soon as practicable after the child is taken into provisional protection and care; or
(b)otherwise, as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.
(5)If a protection application is made in respect of the child, the Court must endeavour to ensure that the first listing date is not more than 3 working days after the application is made.
A protection application as referred to in s 38 is an application for a protection order. There are four different types of protections orders: a protection order (supervision), a protection order (time-limited), a protection order (until 18) and a protection order (special guardianship).[32] The protection order sought in respect of the children is a protection order for two years, so is a protection order (time-limited).
[32] Section 43 of the Act.
A protection application can only be made by the CEO.[33]
[33] Section 44(1) of the Act.
Section 39(2) and s 39(2A) provide that where a child is taken into provisional protection and care (other than secure care) and the first respondent either makes, or is required to make, a protection application, the first respondent must prepare and implement a provisional care plan for the child within 7 working days after the child has been so taken. The care plan must address, amongst other matters, the needs of the child while in care and the steps or measures to be taken to address those needs.[34] The care plan must also record decisions made by the first respondent regarding a placement arrangement for the child, and contact between the child and family members, or other persons who are significant in the child's life.[35]
[34] Section 39(2B)(b) and (c) of the Act.
[35] Section 39(2B)(d)(i) and (ii) of the Act.
Section 44(2) of the Act provides that:
(2)A protection application must:
(a)be lodged with the Court; and
(b)specify the type of protection order sought and any proposed conditions of the order; and
(c)state the grounds under section 28(2) on which it is made; and
(d)otherwise comply with any applicable rules of court.
The appellants and the first respondent accept there are no applicable rules of court. Section 4(1) of the Children's Court Act applies s 35 and s 36 and pt 3 div 2 of the Magistrates Court Act 2004 (WA) to the Children's Court. Section 35 and s 36 are directed to questions of judicial review. Pt 3 div 2 sets out a number of powers of the Magistrates Court. Section 19 of the Magistrates Court Act is in pt 3 div 2. Section 19 states that subject to any other written laws or the rules of court, the Court may admit an affidavit into evidence. Section 19 does not require that an affidavit be lodged in support of an application.

Interim orders

Pursuant to s 133(1) of the Act, the Children's Court may at any time in the course of protection proceedings make an interim order.
An interim order may be made on the Children's Court's own initiative or on the application of a party, except where it seeks for a child to be placed in secure care.[36]
[36] Section 133(2A) of the Act.
Section 133(2) of the Act sets out what constitutes an interim order. Relevantly, s 133(2) provides that an interim order is an order:
…
(a)that the child is to be returned to, placed with, or remain with a parent of the child;
(b)that the child is to be taken into, or remain in, provisional protection and care;
…
Section 134 of the Act provides that a party may apply to the Children's Court for the variation or revocation of an interim order. On such an application, the Children's Court may confirm, vary or revoke the interim order, or revoke the interim order and make another order.[37] This is subject to the qualification that the Children's Court must not vary or revoke the interim order or make a new order unless the court is satisfied that:
1.the parties consent; or
2.new facts or circumstances have arisen since the interim order was made, or last varied.[38]
[37] Section 134(2) of the Act.
[38] Section 134(3) of the Act.

Procedural matters

Part 5 div 6 of the Act deals with procedural matters regarding protection proceedings.
Section 145(1) of the Act provides that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.
Section 146(2) of the Act provides that in protection proceedings, the Children's Court is not bound by the rules of evidence but may inform itself on any matter in any manner it considers appropriate. Without limiting s 146(2), s 146(3) provides that evidence of a representation about a matter that is relevant to protection proceedings is admissible despite the rule against hearsay. The Children's Court is to give such weight as it thinks fit to hearsay evidence: s 146(4).
Section 151 of the Act provides that the standard of proof in protection proceedings is proof on the balance of probabilities.
It is useful at this stage to make some observations regarding s 146(2).
The language of s 146(2) is not that the court may receive such evidence as it considers appropriate. Rather, the language of s 146(2) is that the court may inform itself in any manner it considers appropriate. Thus, s 146(2) permits the court to consider material that is not presented in evidentiary form, for example is not presented by way of an affidavit, or by way of oral evidence given on oath or affirmation. However, s 146(2) does not preclude the Court from requiring that material is presented in evidentiary form.
Ultimately, how the Children's Court receives material is a matter of discretion for the presiding judicial officer. In my view, a relevant consideration to take into account in exercising that discretion is the extent to which the material needs to be presented in such a manner that it can be tested by the parties and/or the court. Additional considerations would include the seriousness of the allegations under consideration and that the standard of proof is on the balance of probabilities.

Children's Court practice direction

The Children's Court has issued a practice direction in respect of protection proceedings, being Practice Direction 6 of 2021.
In respect of the initiation of protection proceedings, the Practice Direction provides:
4.1An application by the Department of Communities must be in writing using the Protection Application form and:
a.state the orders that are sought;
b.state the statutory provision under which each order might be made;
c.state the grounds of the application;
d.include particulars of the relevant and current factual allegations or circumstances relied on to make out the grounds of the application; and
e.be signed by the applicant, an authorised delegate or on the applicant's behalf by the applicant's legal representative.
4.2All statements and particulars in an application must be in plain language, and be set out and expressed clearly.
As can be seen, this does not require that an affidavit in support be lodged with the application. That is consistent with s 44 of the Act.[39]
[39] See [67] and [101] of this judgment.
Schedule 1 of the practice direction sets out standard directions to be made in a protection proceeding. Schedule 1 includes directions that program an interim order hearing and provide for the parties to lodge and serve affidavits in advance of such a hearing.

Disposition

The Act provides that in performing a function under the Act in relation to a child, the paramount consideration is the best interests of the child. While a consideration of that type can easily be stated, the determination of what is in the best interests of a child in often a complex issue. As I have said at [45] above, such determination requires an evaluative judgment of many different factors that may not necessarily point in the same direction.

Section 32(1) is just one illustration of how the Act places an emphasis on the best interests of the child. Section 32(1) imposes a duty on the first respondent to take one or more defined steps where the first respondent determines that action should be taken to safeguard or promote a child's wellbeing. One of those steps is to take intervention action.
Intervention action can be taken in one of three ways. First, the commencement of protection proceedings. Second, applying under s 35 for a provisional protection and care warrant and then taking the child into protection and care upon execution of that warrant. Third, taking the child into provisional protection and care under s 37 without a warrant.
Once a child is placed in provisional protection and care, s 29(3) of the Act prescribes particular events that bring provisional protection and care to an end. Those events are quite specific. They require action to be taken by the first respondent, or orders or findings to be made by the Children's Court. The requisite action by the first respondent, and the requisite orders or findings of the Children's Court, are substantive steps that are directly connected to the welfare of the child.
In respect of the first respondent, the required action is that the first respondent returns or places the child into the care of a parent, the child's day-to-day carer or another person with a parent's consent: s 29(3)(a).
In respect of the Children's Court, the requisite order or finding that brings provisional protection and care to an end is that the Children's Court makes an interim order that the child be placed with or returned to a parent or a person approved by the Court, or the Children's Court makes or refuses to make a protection order: s 29(3)(b) - s 29(3)(d).
The Act also recognises that it is a significant event for a child to be taken into provisional protection and care. If the child is taken pursuant to the execution of a s 35 warrant, s 36 of the Act requires the first respondent to commence a protection application promptly. Further, the Children's Court must endeavour to ensure that the first listing date for the application is not more than 3 workings days after the application is made.[40]
[40] Section 36(3) of the Act.
If the child is taken into provisional protection and care under s 37, the steps required to be taken by the first respondent are set out in s 38. The required steps depend on whether or not there are existing protection proceedings on foot.
If there are existing protection proceedings on foot, then pursuant to s 38(3) the first respondent must either promptly make an application for an interim order that the child is to remain in provisional protection and care, or the first respondent must ensure that the child is returned or placed in the care of a parent, the child's day-to-day carer or another person with a parent's consent.
If there are no protection proceedings on foot, pursuant to s 38(2) and s 38(4) the first respondent must either make a protection application or other application under pt 4 promptly, or if the first respondent decides not to do so, they must ensure that the child is returned or placed in the care of a parent, the child's day-to-day carer or another person with a parent's consent.
Further, if a protection application is made, the Children's Court is required to endeavour to ensure the first listing date is not more than three working days after the application is made.[41]
[41] Section 38(5) of the Act.
Also, as set out at [62] above, Mitchell J observed in YPW:[42]
The separation which results from the exercise of power under s 37(2) of [the Act] is not permanent, and will continue only for so long as the Children's Court allows.
[42] YPW [191].
There is (at least to my mind) a somewhat curious anomaly between what must happen when the child is already the subject of protection proceedings, compared to when the child is not the subject of protection proceedings.
Where there are protection proceedings on foot, s 38(3) requires the first respondent to make an application for an interim order that the child remain in provisional protection and care. So, it would appear that the onus is on the first respondent to persuade the Children's Court that the provisional protection and care should continue. However, if there are no such proceedings on foot, then there is no such requirement.
It is difficult to discern a rationale for this difference. One would have thought that the requirement to seek an interim order that the child remain in provisional protection and care ought not depend on whether or not there are proceedings already on foot.
For the purposes of this appeal, it is not necessary to finally resolve this apparent inconsistency. It seems that (at least) a purpose of s 38(3) is to put in place a mechanism which requires the first respondent to bring the existing proceedings back before the Children's Court if the first respondent decides to keep the child in provisional protection and care.
It is enough to say that s 38 taken as a whole requires that protection proceedings concerning the child be brought on promptly for hearing in the Children's Court following the taking of the child. Further, in my view, s 38 also envisages that the Children's Court will facilitate the prompt resolution of questions concerning the protection and care of the children pending the final resolution of the proceedings.
Section 44 of the Act sets out the requirements for a protection application. Section 44 does not require that an affidavit in support of the application be lodged.
As can be seen from the provisions of the Act set out in these reasons, there are no provisions in the Act which require that a protection application brought consequent upon taking a child under s 37 is supported by an affidavit. Moreover, s 146 envisages that the presiding judicial officer may inform themselves on any matter in any manner they consider appropriate. Section 146 also provides that the rules of evidence do not apply. Thus, s 146 expressly envisages that an affidavit may not be necessary. That is a matter for the judicial officer determining the question of interim care to ultimately decide.
The appellants placed much emphasis on the requirement under s 34 and s 120 for an application for a warrant to be made, and any information in support of it to be given, under oath. However, at its highest, that is a relevant consideration for the judicial officer to take into account in assessing the form in which material is to be provided for the purposes of an application regarding the interim care of the child. Section 120 is to be contrasted with s 44, which contains no such requirement.
The appellants also contend that they should not be required to put on their own affidavits in support of an interim order for the return of the children without first having the allegations against them put on oath. However, the report of Ms Haxton set out in some detail the allegations of neglect. That report was expressly prepared for the purposes of setting out the grounds for the application, and while not on oath, is still a document of some importance. The appellants also could have initially limited their affidavit material to setting out the care arrangements they proposed for the children going forward such that would enable the Children's Court to be satisfied that it was appropriate for the children to be returned to the appellants as their parents. And, in any event, the appellants did not seek an order that the first respondent file an affidavit or affidavits verifying the allegations in Ms Haxton's report.
Instead, the appellants seek the (interim) return of their children without the Children's Court, or this court, undertaking any substantive analysis as to whether that is in the best interests of the children.
The effect of the appellants' contention is that because the first respondent did not file affidavit evidence prior to the first hearing in the Children's Court, the question of the continuing care and protection of the children must be resolved in favour of the appellants. The principal basis underpinning this contention is that in the absence of affidavit evidence, the learned magistrate could not fulfil her Honour's judicial function.
The following matters point strongly against the appellants' contentions:
1.The Act does not require that the application be supported by an affidavit.
2.To the contrary, the Act provides that the rules of evidence do not apply, and the Children's Court may inform itself on any matter in any manner it considers appropriate.
3.The cessation of provisional protection and care only comes about by reason of the specified events set out in s 29. Those events require that specified action is taken by the first respondent, or specified orders or findings are made by the Children's Court - see [88] and [89] above.
4.The paramount consideration is the best interests of the children. The absence of affidavit evidence does not demonstrate that it is in the best interests of the children that they be returned to the care of their parents. A result that the absence of affidavit evidence at the first hearing required a child to be immediately returned to the care of a parent who had possibly failed to protect and care for their child would not accord with the paramount consideration being the best interests of the child.
5.Section 38 envisages that the Children's Court will facilitate the prompt resolution of questions concerning the protection and care of the children pending final resolution of the protection application. Section 38 does not mandate that the question of the interim protection and care be resolved on the first occasion the matter comes before the Children's Court after the children have been taken into provisional protection and care.
For these reasons, I do not accept the appellants' contention that the provisional care and protection of the children came to an end at the hearing on 2 August 2024.
The appellants also contend that the learned magistrate was required to consider the circumstances of the children's apprehension. The provisions of the Act do not envisage that the Children's Court is to undertake a review of the administrative decision made to take the children under s 37 of the Act.
That being said, it must be remembered that s 133(2A) of the Act permits the Children's Court to make an interim order (other than for secure care) on the court's own initiative. The application of that provision was not argued before me. My tentative view is that where a child is taken into provisional protection and care under a s 35 warrant, or under s 37, the Children's Court may need to consider whether it is appropriate to make an interim order under s 133(2) regarding the future protection and care of the children. This would especially be the case where the parents are not legally represented. In deciding whether to proceed on its own initiative, the Children's Court would need to consider what material the Court requires to enable it to properly assess whether to make an interim order, and to properly assess the terms of any such order.
The appellants' case on this appeal is not that the learned magistrate ought to have made an interim order for the return of the children to the appellants on her Honour's own initiative. The appellants' case focused on the absence of affidavit evidence from the first respondent. In any event, in my view, it would not have been appropriate for the learned magistrate to have made an interim order for the return of the children on her Honour's own initiative without material from the appellants explaining how they proposed to fulfil their parenting obligations going forward. Further, without such material, in my view it also was not appropriate for her Honour to make an interim order for the return of the children on the oral application of the appellants' counsel made during the course of argument.

The interim order

I will first address the terms of the interim order.
The terms of the order were that until further order:
… the child be taken into and remain in provisional protection and care.
(emphasis added)
At the time the order was made, the children had already been taken into provisional protection and care. The order sought by the first respondent in the application was that the children remain in provisional protection and care. In my view, the order properly construed is to that effect, namely that the children remain in provisional protection and care.
Having regard to the effect of s 29 of the Act, such an order was unnecessary. As Mitchell J observed in YPW, the order 'does not have any particular effect on the status of the children or the duties of the [first respondent] in relation to them'.[43]
[43] YPW [230].
Further, the first respondent only sought the interim order on the basis that it 'would just be confirming that status'.
In my view, the making of the interim order did not reflect a substantive determination by the Children's Court of the question of the interim protection and care of the children. That being so, it would be open to the appellants to apply under s 134 to revoke the interim order and seek a different order regarding the interim protection and care of their children. Further, the terms of the interim order recognise that it is open for the appellants to do so. The order is expressed as operating until further order.
For these reasons, when regard is had to the quite limited basis on which the interim order was sought and made, the learned magistrate did not make an error of law in making the interim order. Further, the making of the interim order did not occasion a miscarriage of justice.

Conclusion

I will conclude with two final observations.
If in future the first respondent seeks an interim order on the same basis as sought in this matter, it might be preferable for that order to merely record that the children remain in provisional protection and care by reason of the operation of s 29 of the Act.
At the hearing on 2 August 2024, in my view, the learned magistrate fulfilled her judicial function in an exemplary manner and made every effort to facilitate the prompt resolution of questions pertaining to the interim protection and care of the children. Those questions are no doubt of much significance to the appellants, and to their children, and the appropriate course is for such questions to now be promptly resolved by the Children's Court.
The appropriate orders are that leave to appeal is refused and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
30 OCTOBER 2024