VB v Chief Executive Officer of the Department of Communities - [2019] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   VB -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES [2019] WASC 315
CORAM:   HILL J
HEARD:   1 AUGUST 2019
DELIVERED          :   30 AUGUST 2019
FILE NO/S:   CIV 3072 of 2018
BETWEEN:   VB
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES
First Respondent
CAROL JACOBS as Acting District Director of THE DEPARTMENT OF COMMUNITIES (CANNINGTON DISTRICT)
Second Respondent
ANDREA NIXON as District Director of THE DEPARTMENT OF COMMUNITIES (CANNINGTON DISTRICT)
Third Respondent

Catchwords:

Judicial review - Revocation of placement order - Unreasonable exercise of discretion - Consideration of irrelevant matters - Failure to consider relevant matters - Appropriate remedy - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA)
Children and Community Services Regulations 2006 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr G McIntyre SC & Ms C A Bahemia
First Respondent	:	Mr A J Sefton & Ms E L O'Donnell
Second Respondent	:	Mr A J Sefton & Ms E L O'Donnell
Third Respondent	:	Mr A J Sefton & Ms E L O'Donnell

Solicitors:

Applicant	:	Carol Bahemia Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office

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

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173
CEO of the Department of Child Protection and Family Support v SMD [2016] WASC 123
Commissioner of Taxation v Futuris Corporation Pty Ltd [2008] HCA 32; (2008) 237 CLR 146
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Gudgeon v Black (1994) 14 WAR 158
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Mulholland v Winslow [2016] WASC 405
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
S v Paskos (1992) 8 WAR 561
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
Varney v Parole Board of Western Australia [2000] WASCA 393
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
Zheng v Cai [2009] HCA 52, (2009) 239 CLR 446

HILL J:

The applicant seeks judicial review of a decision to cancel the placement with her of her granddaughter, to whom I refer to in these reasons as the child. That decision was made under the Children and Community Services Act 2004 (WA) (the Act).
At the outset, it is important to emphasise that the issue on the application before me is whether the third respondent validly exercised the statutory power conferred by s 79(3) of the Act to cancel the placement of the child with the applicant. It is not a review of the merits of the decision – the question of what is in the best interests of the child or where she should live does not fall to be determined by this court. That determination has been invested by Parliament in the first respondent.
The applicant seeks judicial review of this decision on the following grounds:
(a)did not afford procedural fairness to the applicant in making the decision;[1]
(b)exercised her discretion unreasonably, alternatively made in bad faith;[2]
(c)took into account irrelevant considerations;[3] and
(d)failed to take into account mandatory relevant considerations.[4]
[1] Amended application dated 3 May 2019, ground 6.
[2] Amended application dated 3 May 2019, ground 1.
[3] Amended application dated 3 May 2019, grounds 2 and 5.
[4] Amended application dated 3 May 2019, grounds 1, 3 and 7.
For the reasons set out below, I find that prior to the decision to cancel the placement of the child with the applicant, the child was not given the opportunity to participate in the decision‑making process or the opportunity to express her wishes and views freely. This was a mandatory relevant consideration pursuant to the Act that the third respondent was required to have regard to in exercising her discretion. Accordingly, I consider that the third respondent failed to take into account a relevant consideration in making her decision. As a consequence, the third respondent erred in law in making the decision to cancel the placement. I do not consider that the applicant has made out any of the other grounds of appeal.
The question then is what remedy, if any, flows from this finding. Taking into account that first, since the placement was cancelled, a revised care plan of the child has been issued which confirms the current placement of the child; second, this plan has been the subject of an unsuccessful merits review by the applicant; and third, the applicant can apply to the State Administrative Tribunal for a review of this decision, it is my view that it would be futile to grant a writ of certiorari and that a more convenient and satisfactory remedy exists. For these reasons, I decline to exercise my discretion to grant any relief.

Factual background

The applicant filed three affidavits in these proceedings.[5] The respondents filed four affidavits in these proceedings.[6] No application was made to cross-examine any deponent.
[5] Affidavit of VB filed 14 January 2019; Affidavit of VB filed 14 March 2019; Affidavit of VB filed 8 July 2019.
[6] Affidavit of Jessica May Wera filed 25 February 2019; Affidavit of Andrea Maree Nixon filed 27 May 2019; Supplementary affidavit of Jessica May Castles filed 31 July 2019 [between filing her 2 affidavits, Ms Wera changed her name to her married surname]; Affidavit of Scarlette Eva Uttam filed 31 July 2019.
The following documents were tendered by the parties during the hearing:
(a)Exhibit One: a letter from the Department of Communities (Department) to the applicant dated 19 July 2019, containing the Care Review Panel Report signed by the chairperson on 30 July 2019;
(b)Exhibit Two: the applicant's Trial Bundle containing excerpts of the casework practice manual produced by Child Protection and Family Support;
(c)Exhibit Three: a Web Report, being documents concerning the self-assessment of the child; and
(d)Exhibit Four: internal documents of the Department concerning the assessment of the carer competency of the applicant.
The applicant and the child are Indigenous. The child, who was born in January 2011, was initially placed in the care of the applicant in November 2012 and lived with the applicant from that date until July 2018. In January 2013, with the consent of the child's father, a provisional protection order for two years was made by the Children's Court in respect of the child.[7] Subsequently, in June 2015, a protection order was made.[8] This gave the CEO of the Department parental responsibility of the child until she reaches 18 years of age. At the time, the child's father was in prison, her mother was in Graylands hospital,[9] and her two older brothers were in the care of the first respondent.[10]
[7] Affidavit of VB filed 14 January 2019, 'VB1'.
[8] Order made pursuant to s 57(1) of the Act.
[9] Affidavit of VB filed 14 January 2019, par 3.
[10] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW1'.
At the time of the incidents referred to below, the child was seven years old. The Department has a charter of rights for children in care aged between seven and 12 years old.[11] The charter includes the child's right to be kept informed about her care plan and to have her views considered (right 3), the right to talk with her case worker (right 5), the right to be heard (right 7), the right to have contact with her family and friends whenever possible (right 9), the right to be encouraged and supported in her religion and culture (right 10) and the right to be safe (right 12).
[11] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW33'.
The applicant deposed that she is Catholic and that she has brought the child up to be a Catholic. Her evidence was that the child was looking forward to her confirmation.[12]
[12] Affidavit of VB filed 14 January 2019, par 29.
The initial case worker for the child was Scarlette Uttam. The applicant deposed that she had a good relationship with Ms Uttam.[13]
[13] Affidavit of VB filed 14 January 2019, par 33.
On 19 February 2018, Ms Wera became the case manager for the child. It is clear from the evidence before me that Ms Wera kept comprehensive case notes on her interactions with the applicant and the child and any information she received about them.
From approximately 2016, low level concerns were raised within the Department about the applicant's care of the child. At all stages, the child was described as a 'bright and generally happy little girl',[14] who was meeting all development milestones, attended school and was fully immunised.[15]
[14] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW69', page 177.
[15] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW73'.
It is apparent that matters escalated rapidly between May and August 2018. Over this time period, a series of decisions were made in relation to the child, not all of which are well documented. These decisions included the transfer of the child from an emergency placement to what has been described as a 'respite placement', the decision that the child should remain in the respite placement while a standard of care assessment was undertaken in respect of the applicant, the decision that the child should remain in the temporary placement for six months, at which time it would be reassessed, the 'decision' to withdraw the applicant's status as a carer (a decision which was subsequently withdrawn), and the decision to cancel the placement of the child with the applicant.
The Department did not communicate each separate decision or the reasons for each decision to the applicant, either in writing or orally. The only matters that were communicated to the applicant were that the child would remain in the respite placement while a standard of care assessment was undertaken (although not the reasons for this decision) and that the applicant's status as a carer of the child had been withdrawn. In addition, the child's care plan was not formally modified to reflect these changes until February 2019. I comment below on the significance of each of these matters.

Events from May 2018 until 4 July 2018

Both the applicant and Ms Wera have deposed to a number of events which occurred between May 2018 and July 2018. I accept that the events referred to in the affidavits occurred. In saying this, this does not mean that I consider that the complaints received by representatives of the Department were substantiated, but simply that they were received. It is not necessary for me in considering the applicant's application for judicial review to make any finding as to the truth of these complaints. These matters are summarised below simply to record matters that were brought to the attention of the Department.
On 2 May 2018, Ms Wera and Ms Nannup, an Aboriginal practice leader, visited the applicant and her son, the child's father, at the applicant's home. Ms Wera deposed that the purpose of the visit was to draft a safety plan concerning the contact between the child and her father. Ms Wera deposed that she made it clear to the applicant that any contact between the child and her father needed to be supervised by the applicant.[16]
[16] Affidavit of Jessica May Wera filed 25 February 2019, par 23.
On 3 May 2018, Ms Wera was advised that the father of the child had picked the child up from school without supervision. As a consequence, she requested that the police and crisis care workers attend the home of the applicant, which they did at approximately 7.00 pm that night. They asked the applicant where the child was and the applicant responded that she was in the applicant's home watching television.
On 8 May 2018, Ms Wera attempted to visit the applicant so that the safety plan could be signed.[17] The applicant was not home so Ms Wera left a message requesting that she contact her. The applicant called Ms Wera on 9 May 2018. Ms Wera deposed that when she raised concerns about the child's father having unsupervised access to the child, the applicant became verbally abusive.[18]
[17] Affidavit of Jessica May Wera filed 25 February 2019, par 27, 'JMW11'.
[18] Affidavit of Jessica May Wera filed 25 February 2019, par 28, 'JMW12'.
On 24 May 2018, Ms Wera received a report from the child's after school care that the child had an injury on the back of one of her legs that 'appeared to look like a cigarette burn'.[19] The child was interviewed the following day, on 25 May 2018, and did not disclose the cause of the injury.
[19] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW21', page 78.
On 26 May 2018, the child was hospitalised for two days with cellulitis in her toe. The applicant did not inform Ms Wera of the child's hospitalisation.[20] The applicant deposed that she believed the hospital would inform the Department directly.[21] The medical report from the treating paediatric consultant noted that the child was clinically obese, had a head lice infestation, a helminth infection and was a staphylococcus carrier.[22]
[20] Affidavit of Jessica May Wera filed 25 February 2019, par 32.
[21] Affidavit of VB filed 14 January 2019, par 41.
[22] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW18', page 71.
On 30 May 2018, Ms Wera and Ms Nannup visited the applicant at her home to discuss reports they had received about the injury on the child's leg. Ms Wera deposed that the applicant was hostile to them.[23]
[23] Affidavit of Jessica May Wera filed 25 February 2019, par 33.
Ms Wera undertook the child's quarterly care review on 6 June 2018. During her meeting with the child, the child showed her the injury on her leg and her toe. Ms Wera's contemporaneous note states that they 'looked like they were both healing well', and 'weren't red or inflamed'. The review also noted that the child 'was her normal bubbly, happy self' and that 'there was nothing she didn't like about home'.[24]
[24] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW19'.
Ms Wera visited the child at school one week later on 13 June 2018. During this visit, the child told her that her father, the applicant's son, had visited the applicant's home the previous night and the child had witnessed a physical altercation between the applicant and the child's father.[25]
[25] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW20'.
In June 2018, the child's case was referred to the duty of care unit within the Department.[26] On 20 June 2018, a duty of care consultation between members of the Department took place.[27] During this consultation, there was a discussion about the concerns regarding the child and the care provided to the child by the applicant. The contemporaneous note of the meeting records that:[28]
At this stage a decision has not been made in relation to whether [the child's] placement with [the applicant] will continue and this decision will be informed by the signs of safety meeting on 21/6/2018 and whether [the applicant] engages with District staff to make and sustain changes that will improve the care that [the child] is receiving and whether she can sustain the changes in light of her own significant health issues.
[26] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 12.
[27] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW21'.
[28] Affidavit of Jessica May Wera filed 25 February 2019, page 80.
The applicant, together with two support people, attended a Signs of Safety meeting with Ms Wera, Ms Nannup and other representatives of the Department on 21 June 2018. Ms Wera deposed that the applicant engaged well during the meeting and agreed to address a number of the issues that were raised including the child's obesity.[29] Ms Nixon deposed that because of the applicant's engagement at this meeting, a decision was made that there was no immediate need to conduct a standard of care assessment or an investigation by the duty of care unit.[30]
[29] Affidavit of Jessica May Wera filed 25 February 2019, par 43, 'JMW22'.
[30] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 28.
The applicant deposed that she contacted her doctor to make an appointment to discuss the child's diet[31] but before she was able to take advice or implement any changes, the child was removed from her care.
[31] Affidavit of VB filed 14 January 2019, par 61, 'VB4'.
On 22 June 2018, Ms Wera visited the child at school to provide her with new socks and shoes.[32] Ms Wera observed that the child's toe, which had previously been treated for an infection, was looking red and inflamed.[33]
[32] Affidavit of Jessica May Wera filed 25 February 2019, par 44.
[33] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW23'.
On 24 June 2018, an incident involving family violence between the applicant and her niece and sisters occurred which was witnessed by the child.[34] As a consequence of the incident, the applicant went to hospital for observation and the child was placed in emergency care overnight.[35]
[34] Affidavit of VB filed 14 January 2019, par 78.
[35] Affidavit of Jessica May Wear filed 25 February 2019, 'JMW25'.
On 25 June 2018, Ms Wera attempted to contact the applicant regarding the incident on 24 June 2018.[36] At approximately midday, Ms Wera visited the applicant while she was undertaking dialysis to discuss the incident. The applicant explained what had occurred and asked Ms Wera to visit the child at school as she knew that the child was upset by what she had witnessed.[37]
[36] Affidavit of Jessica May Wera filed 25 February 2019, par 48.
[37] Affidavit of Jessica May Wera filed 25 February 2019, par 50.
At approximately 2.30 pm that day, Ms Wera visited the child at school. Her contemporaneous record of the discussion notes that the child was very quiet and withdrawn when she first arrived. The child was reluctant to discuss what had occurred on the weekend but told Ms Wera of the argument between family members that she had witnessed. The child also said 'there was also something that scared me that happened on Saturday night' but would not provide further details. During this conversation, the child told Ms Wera that 'there's no food' in the applicant's home.[38]
[38] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW29'.
Ms Wera was subsequently informed that on the Saturday night, the applicant had 'grabbed a knife' and walked towards a person with 'the knife in one hand and [the child's] hand in the other'.[39]
[39] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW30'.
Following these discussions, Ms Wera raised her concerns with the third respondent. The third respondent told her that they needed to gather further information from the police about the incidents over the weekend due to the conflicting information about the events. She indicated that once this had been done, they could meet with the applicant to 'discuss the seriousness of our concerns and determine if [the child] can remain in her care'.[40]
[40] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW35', page 116.
On 27 June 2018, Ms Wera visited the applicant at the dialysis clinic to drop off a phone and offered to collect the applicant the following day on her way to the child's primary school to attend an open day.[41]
[41] Affidavit of Jessica May Wera filed 25 February 2019, par 54, 'JMW32'.
On 28 June 2018, the applicant obtained a violence restraining order against her niece following the events on 24 June 2018.[42]
[42] Affidavit of VB filed 14 January 2019, 'VB9'.

On 2 July 2018, the applicant telephoned Ms Wera to inform her that she was in hospital and was unable to care for the child that night.[43] As a consequence of the agreed respite carers being unavailable, Ms Wera initially proposed that the child be placed with one of the applicant's sisters. When she informed the applicant of this, the applicant became extremely upset and said that the child either had to go to her other sister or be brought to her in hospital.[44]
[43] Affidavit of VB filed filed 14 January 2019, par 63; Affidavit of Jessica May Wera filed 25 February 2019, par 55.
[44] Affidavit of Jessica May Wera filed 25 February 2019, par 56 ‑ 58, 'JMW34'.
As a consequence, the Department arranged an emergency placement and Ms Wera collected the child to transport her to this placement. Ms Wera's notes record that the child said that she wanted to stay with the applicant's sister who Ms Wera had originally proposed and that she observed that the child's clothes were not clean, she had head lice, and her hair was unclean and matted. In response to questions, the child is recorded as having informed Ms Wera that she cleaned the applicant's house and that 'there's not usually food but it's OK because I have weetbix'.[45]
[45] Affidavit of Jessica May Wera filed 25 February 2019, par 62, 'JMW34'.
Ms Wera's notes also record that she spoke to a social worker at the hospital where the applicant was. She asked that the social worker speak to medical staff about the applicant's ability to care for the child once released.[46] The social worker subsequently confirmed that the applicant could continue care for the child and that the hospital was planning on discharging the applicant that day.[47]
[46] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW34'.
[47] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW39'
Ms Wera spoke with the emergency carers and was informed that they were not returning to their home with the child until after 6.00 pm on 3 July 2018. As a result, the third respondent decided that the child should stay in this placement overnight. In an email to Ms Wera on the same date, the third respondent stated 'If [the applicant] has been cleared by her medical team there should be no issue in returning [the child] unless [s]ome concerns raised since our last consultation?'[48]
[48] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW39'.
The applicant telephoned Ms Wera from hospital at approximately 4.30 pm on 3 July 2018 to ask when the child would be brought to her as she was being discharged from hospital soon. Ms Wera explained that the child was staying with the emergency carers that night and asked the applicant to contact her the next day from dialysis to discuss plans for the child.[49] Ms Wera's notes disclose that a consultation between members of the Department of Communities was planned for 1.30 pm on 4 July 2018.
[49] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW40'.
On 4 July 2018, the applicant left a telephone message for Ms Wera saying that she was coming to the office to collect the child and required a call back.[50] At 10.30 am, the applicant attended the office and demanded that the child be returned to her. Ms Wera, together with an Aboriginal liaison officer and a team leader met with the applicant. It is clear that this meeting was heated and that the applicant swore at Ms Wera on a number of occasions.[51]
[50] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42'.
[51] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42'.
Shortly after this meeting, Ms Wera received an email from M, a support person of the applicant who provided respite care to the child on occasions, asking for a return call. M had been informed by the applicant that the Department had 'taken [the child] away to an emergency family … and are refusing to return her'.[52] In response, Ms Wera informed M that 'We are meeting with our Acting District Director at 1.30 pm today and she will make the decision as to when [the child] returns to [the applicant's] care.'[53]
[52] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW43'.
[53] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW43'.
At approximately 1.30 pm on 4 July 2018, a decision was made by the second respondent that the child would not return to the applicant while a standard of care assessment was completed.[54] There is no evidence before me as to the reasons for this decision being made or whether a view had been formed about the level or risk of harm to the child and, if so, the basis for that decision.
[54] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42', page 127.
Ms Nixon deposed that if the Department believes that the level or risk of harm to a child is significant, it is normal practice to keep the child elsewhere while a standard of care assessment is ongoing.
At approximately 3.00 pm on 4 July 2018, the applicant attended the childcare centre where the child was undertaking vacation care. The childcare centre contacted Ms Wera who requested that they ask the applicant to attend the Cannington District Office of the Department.[55] The applicant attended Cannington District Office at 4.30 pm that afternoon and was told that the child would not be returning to her care.[56] The applicant became extremely distressed and angry and, ultimately, the police and ambulance were called.[57]
[55] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42', page 127.
[56] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42', page 127.
[57] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW42', page 127.
Ms Nixon deposed that on 4 July 2018, the Acting District Director of the Cannington District of the Department (the second respondent) decided that a standard of care assessment should be conducted in relation to the applicant.[58] There is no evidence before me as to the basis for this decision.
[58] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 30.
At some point, the applicant received a letter from the Department of Communities dated 4 July 2018. The letter stated that the applicant was under a standard of care assessment (Tier 1). The letter noted that this is implemented when 'there are situations that indicate a carer has failed to meet the carer competencies, but significant harm or risk of harm has not occurred.' It also noted that '[the child] may not be returning to your care until you meet … to discuss these concerns and try to resolve them in a respectful partnership.'[59]
[59] Affidavit of VB filed 14 January 2019, 'VB7'; Affidavit of Jessica May Wera filed 25 February 2019, 'JMW44'.
The Casework Practice Manual of the Department of Communities states that a Tier 1 assessment is done 'when the safety and wellbeing concern relates to an approved carer but there is no indication that the child has been significantly harmed or is at risk of significant harm.'[60] The Casework Practice Manual states that the focus of the assessment is 'addressing the concern, rather than investigating it'.[61] It also noted that the assessment 'must consider the opinion of the child'.[62]
[60] Exhibit 2, page 3.
[61] Exhibit 2, page 10.
[62] Exhibit 2, page 12.
I note that a case note prepared by Alex Ronson, Acting Team Leader, Crisis Care, suggests that Ms Wera and a team leader met with the applicant at 1.30 pm to advise the applicant that the child would not be returning to her care.[63] This is not accurate as the applicant did not attend the meeting at 1.30 pm at which the decision was made by the second respondent.

Events from 5 July 2018 until 24 August 2018

[63] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW45'.

On 5 July 2018, Ms Wera prepared a summary of the current position in response to a request from the third respondent.[64] This summary referred to the applicant's health, ongoing concerns about the applicant's care of the child, the difficulties of the Department in attempting to contact the applicant, and a summary of the events that occurred between 2 and 4 July 2018.[65] I note that the summary does not include a summary of the reasons for the decision that the child remain in her emergency placement until the standard of care assessment was completed or record any discussions with the child herself.
[64] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW46'.
[65] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW46'.
On 5 July 2018, representatives of the Department of Communities met with the applicant to inform her that she was subject to a carer standard of care review and that until this had been completed and the applicant was able to address the Department's concerns, the child would not be returning to the applicant's care.[66]
[66] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW46', page 135.
On 6 July 2018, a consultation took place between representatives of the Department of Communities and an Aboriginal practice leader concerning the child. The consultation was to discuss plans that could be put in place for the child to remain in contact with her family while at her emergency placement.[67]
[67] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW47'.
On 8 July 2018, the applicant contacted Crisis Care to express her distress at the situation following a conversation with the child. The notes of the conversation record that 'it is unclear whether she understands the reasons that [the child] has been removed from her care'.[68]
[68] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW48'.
Between 10 and 13 July 2018, there were three internal meetings between representatives of the Department and an Aboriginal practice leader. These meetings discussed upcoming meetings with family members and the meeting with the applicant on 17 July 2018, including whether information provided by other family members could be shared with the applicant.
On 11 July 2018, the child was placed with M and A.[69]
[69] Affidavit of Jessica May Wera filed 25 February 2019, par 87.
On 16 July 2018, the applicant attended the Belmont Police Station to report the child as having been stolen. Following this, a police officer contacted the Department to discuss the situation. The notes record that the police officer intended to call the applicant to inform her 'that the meeting that is going ahead tomorrow is to discuss concerns regarding the reasons [the child] was removed from [the applicant's] care.[70] On the same date, Ms Wera received a call from the applicant's sister. The sister told Ms Wera that the applicant wanted the child to reside with her (the sister).[71]
[70] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW52'.
[71] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW53'.
Ms Wera's case notes disclose that on 16 July 2018, she had two conversations with unnamed individuals about the applicant's ability to care for the child. The notes disclose that concerns were raised about the applicant's health and ability to care for the child, particularly in relation to the child's personal hygiene and diet.[72]
[72] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW55', 'JMW56'.
On 17 July 2018, the applicant was scheduled to meet with representatives of the Department at 2.00 pm to discuss the standard of care assessment. The meeting was cancelled by Ms Chambers, the senior child protection worker, placement services, due to the applicant's late attendance at approximately 2.40 pm.[73] Ms Wera and other representatives of the Department sought to discuss contact arrangements between the applicant and the child, and the applicant raised her view that the child had been kidnapped by the Department. Ms Wera's notes record that the applicant became abusive and the meeting ended without resolution.[74]
[73] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW57', 'JMW58'.
[74] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW57'.
The standard of care assessment meeting was rescheduled to a telephone meeting on 7 August 2018 at 2.00 pm. The applicant was advised of this meeting by letter dated 24 July 2018.[75]
[75] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW62'.
The standard of care assessment meeting proceeded by telephone on 7 August 2018. The Department's record of the meeting notes that the applicant 'hardly agreed' with any of the concerns they wished to raise with her.[76] The record also notes that Ms Chambers advised the applicant that a possible outcome of the report was that the child would not be returned to her care and that 'of particular concern is [the applicant's] aggressive and abusive behaviour towards staff'.[77]
[76] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW65'.
[77] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW65'.
It is apparent that the applicant lodged a complaint about the handling of the matter. In response to a request that she provide a summary of the background 'leading up to and since [the child's] placement move', Ms Wera summarised a number of concerns about the placement and the care provided by the applicant including the child witnessing family domestic violence, the child's weight, school attendance, the health of the child and the declining health of the applicant, the difficulties in contacting the applicant and the aggression displayed towards Departmental staff. The summary also records that Ms Wera visited the child on 7 August 2018 and 'explained to [the child] the reasons why she could not live with [the applicant] and [the child] understood these reasons. … [the child] said that she is enjoying living with A and M but is 'missing nan'.[78] It was not disputed by the respondents that this reference was to the applicant.
[78] Affidavit of Jessica May Wera, 'JMW67', page 170.
On an unspecified date between 6 August 2018 and 23 August 2018, Ms Nixon decided that the child should remain in her temporary placement and that this would be reassessed after six months as to whether the child should remain there and what action, if any, the applicant was prepared to take to address the Department's concerns.[79] There is no evidence before me as to when this decision was made or the basis for it.
[79] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 43.
On 23 August 2018, Ms Chambers completed her standard of care assessment. The assessment recorded the background to the standard of care issue including that there had been low level concerns which had escalated and noted that 'Due to all the concerns the Department had in relation to [the applicant] as a family carer, [the child] has not been returned to her care.'[80] The assessment considered each of the five carer competencies and stated that the applicant was 'unwilling or unable to acknowledge that any of her behaviour needs to change.' As a consequence, Ms Chambers recommended that '[the applicant] is withdrawn as a family carer'. The assessment also noted that 'The decision has already been made by the District Director that [the child] is to remain in her current placement for at least a six month period.' The assessment noted that the applicant would be sent a letter outlining the reasons for decision.[81]
[80] Affidavit of Andrea Maree Nixon filed 27 May 2019, 'AMN6', page 42; Affidavit of Jessica May Wera filed 25 February 2019, 'JMW69'.
[81] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW69'.
The assessment was endorsed by the relevant team leader and the third respondent.[82]
[82] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW69', page 182; Affidavit of Andrea Maree Nixon filed 27 May 2019, 'AMN6', page 52.
Ms Nixon deposed that she made the decision to cancel the child's placement arrangement with the applicant and that, from her perusal of the file and the standard of care assessment, she made this decision on 23 August 2018.[83] Ms Nixon had the delegated authority to make this decision on behalf of the first respondent.[84] Ms Nixon deposed to the considerations that she generally takes into account when making a decision to cancel a placement. These are:
(a)the level of any harm to the child and whether harm has been substantiated;[85]
(b)the risk of ongoing harm;[86]
(c)what the child has said;[87]
(d)other external evidence and/or interviews with other people which substantiate the claims of harm;[88]
(e)where the child is Aboriginal, the views expressed by senior Aboriginal staff within the Department;[89]
(f)the Department's policies.[90]
[83] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 40 ‑ 41.
[84] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 11, 'AMN1'.
[85] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 45(a).
[86] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 45(b).
[87] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 45(c).
[88] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 45(d).
[89] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 46.
[90] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 49.
Ms Nixon's evidence was that in the case of long‑term protection orders, as was the case with the child, the attention is focussed on the child[91] as well as the carer.[92] She deposed that similar considerations applied to the decision about placement arrangements as when making a decision to bring a child into care in the first place.[93]
[91] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 53.
[92] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 54.
[93] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 51.
Specifically, in relation to the decision concerning the placement of the child, she deposed that in making this decision she:
(a)consulted with senior Aboriginal staff within the Department who 'expressed the view that the child should have come out of the placement with the applicant much sooner than she did'. [94] I note it is not clear from Ms Nixon's affidavit as to when this consultation took place, who expressed these views or the basis for them;
(b)'determined, pursuant to s 28 of the Act, that significant harm had occurred and that there was a risk of ongoing harm if she remained in her placement with the applicant'; [95]
(c)'considered that the evidence gathered and assessments undertaken over a considerable period of time, and concluding in August 2018, demonstrated that:
(i)the child was at serious risk of harm as long as she remained with the applicant; and
(ii)the applicant was not willing to engage appropriately with the Department to even attempt to address those concerns and risks to the child.'[96]
[94] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 46.
[95] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 48.
[96] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 55.
On 24 August 2018, the applicant received a letter from Ms Chambers of the Department.[97] The letter noted that the applicant had been advised that day 'that the decision of the Department of Child Protection is to withdraw you as a family carer in relation to [the child].' The letter attached a document which summarised the Department's concerns about each of the carer competencies. Ms Nixon deposed that she was not aware that this letter had been sent and acknowledged that none of the steps required under the Children and Community Services Regulations 2006, r 4(1) had been followed. Ms Nixon subsequently sent a letter to the applicant (care of her solicitors) on 2 May 2019 stating that the applicant's carer status had not been withdrawn and that she remains an approved carer.[98]
[97] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW70'.
[98] Affidavit of Andrea Maree Nixon filed 27 May 2019, 'AMN7'.
On 24 August 2018, the applicant received another letter from the Department regarding the outcome of the investigation of her complaint.

While there are internal Department documents which suggest that the decision to cancel the child's placement took place on 4 July 2018,[99] these documents are not contemporaneous documents but are documents created after the event. On the basis of Ms Nixon's evidence, I find that the decision to cancel the child's placement was made on 23 August 2018 and that the decision on 4 July 2018 was a decision that the child would remain in her respite care while a standard of care assessment of the applicant was undertaken.

Events after 24 August 2018

[99] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW81'.

In late September 2018, discussions took place about moving the child from the current placement with M and A to W and R, who are the applicant's sister and brother in law. Internal documents from the Department record that the child had asked if she could live with W and R since being removed from the care of the applicant as they care for an 11‑year‑old girl who the child calls sister; that M and A had expressed a preference that the child be placed with W and R with them providing respite; that the applicant has stated that she would prefer the child to be placed with W and R; and that W and R had reported that the child's father had asked them to care for the child.[100]
[100] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW74'.
On 7 October 2018, the child was placed in the care of W and R and has remained in their care since that date.
On 5 November 2018, the applicant, by her solicitors, requested a copy of any revised care plan in respect of the child.[101] On 7 November 2018, the Department responded to inform the applicant that the Department was unable to provide her with the requested documents and that a freedom of information request needed to be completed.[102]
[101] Affidavit of VB filed 8 July 2019, 'VB11'.
[102] Affidavit of VB filed 8 July 2019, 'VB12'.
On 21 December 2018, a finding was made, following a safety and wellbeing assessment, that the child had 'suffered significant cumulative harm and omission of care' and that 'neglect had been substantiated'.[103] Ms Wera's evidence was that this assessment was requested following a report made on 24 May 2018 that an injury which 'appeared to look like a cigarette burn' had been seen on the back of one of the child's legs.[104] The applicant was ultimately advised of the outcome of this assessment by letter dated 7 March 2019.[105]
[103] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW80'.
[104] Affidavit of Jessica May Wera filed 25 February 2019, par 129.
[105] Affidavit of Andrea Maree Nixon filed 27 May 2019, 'AMN10'.
The Casework Practice Manual of the Department states that a safety and wellbeing assessment must be completed within 30 calendar days of its commencement unless an extension is approved by the team leader.[106] There is no evidence before me as to whether an extension was sought and approved. The manual also provides that the assessment must include clear evidence of harm and a clear rationale to support the decision made.[107]
[106] Exhibit 2, page 15.
[107] Exhibit 2, page 15.
On 6 February 2019, the care plan in respect of the child was modified. The modified care plan noted that the decision to end the child's placement with the applicant occurred on 4 July 2018. The care plan does not record any decision as having been made on 23 August 2018.[108] There is no evidence before me as to whether the revised care plan was provided to the applicant.
[108] Affidavit of Jessica May Wera filed 25 February 2019, 'JMW81'.
The updated care plan was reviewed by the Department as part of its annual review process during February and March 2019. The applicant was invited to participate in the annual review and attended a meeting for that purpose on 14 February 2019.[109] Following this, the care plan was revised and provided to the applicant on 20 March 2019.[110]
[109] Affidavit of Jessica May Wera filed 25 February 2019, par 133.
[110] Affidavit of Andrea Maree Nixon filed 27 May 2019, par 68, 'AMN9'.
On 2 April 2019, the applicant filed an application to review the care planning decision concerning the placement of the child with W and R and the conditions surrounding the contact between the child and the applicant. A hearing before the care plan review panel occurred on 30 May 2019. On 30 June 2019, the care review panel provided the CEO of the Department of Communities with its recommendations.[111]
[111] Exhibit 1.
On 19 July 2019, the CEO of the Department of Communities notified the applicant of her decision to uphold the placement of the child with W and R and to modify the conditions regarding contact between the child and the applicant.[112]
[112] Exhibit 1.
The applicant has a right to apply to the State Administrative Tribunal for a review of this decision. Any such application must be filed within 28 days of the date of notification of the decision.

Application for judicial review

On 30 January 2019, the applicant filed an application for judicial review. The application sought review of a number of decisions of the respondents, including the decision to cancel the placement arrangement in respect of the child and the decision to withdraw the applicant's status as a relative carer of the child.
On 5 April 2019, Strk AJ ordered that the current second respondent be substituted as second respondent and that the third respondent be joined to the proceedings.
On 14 May 2019, Strk AJ granted leave to the applicant to amend the application to limit the application to two decisions, namely the decision to cancel the placement arrangement in respect of the child and the decision to withdraw the applicant's status as a relative carer of the child.
As noted above, on 2 May 2019, the third respondent informed the applicant that her carer status had not been withdrawn and that she remained an approved carer. As a consequence, it is not necessary for me to consider whether this decision was lawfully made.

Grounds on which judicial review is sought

The applicant challenges the decision to cancel the placement arrangement of the child on four grounds, namely that the decision‑maker:
(a)did not afford procedural fairness to the applicant in making the decision;[113]
(b)exercised her discretion unreasonably, alternatively made in bad faith;[114]
(c)took into account irrelevant considerations;[115] and
(d)failed to take into account mandatory relevant considerations.[116]
[113] Amended application dated 3 May 2019, ground 6.
[114] Amended application dated 3 May 2019, ground 1.
[115] Amended application dated 3 May 2019, grounds 2 and 5.
[116] Amended application dated 3 May 2019, grounds 1, 3 and 7.
Before considering these grounds, it is necessary to consider the statutory background of the Act and the proper construction of s 79(3) of the Act.

Statutory Background

The objects of the Act are set out in, s 6 of the Act:
(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 makes it clear that the paramount consideration in the exercise of any power under the Act is the best interests of the child.
In determining what is in a child's best interests, s 8 of the Act sets out a number of mandatory relevant considerations which must be taken into account. Those considerations include:
(a)the need to protect children from harm;[117]
(b)the capacity of the child's parents, or of any other person, to provide for the child's needs;[118]
(c)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;[119]
(d)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;[120]
(e)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;[121]
(f)the need to maintain contact with parents, siblings and other relatives and with any other people who are significant in the child's life;[122]
(g)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);[123]
(h)the child's physical, emotional, intellectual, spiritual and development needs;[124]
(i)the child's educational needs;[125] and
(j)the likely effect on the child of any change in the child's circumstances.[126]
[117] Act, s 8(1)(a).
[118] Act, s 8(1)(c).
[119] Act, s 8(1)(d).
[120] Act, s 8(1)(f).
[121] Act, s 8(1)(g).
[122] Act, s 8(1)(h).
[123] Act, s 8(1)(j).
[124] Act, s 8(1)(k).
[125] Act, s 8(1)(la).
[126] Act, s 8(1)(m).
'Harm' for the purposes of the Act includes harm to the child's physical, emotional and psychological development.[127]
[127] Act, s 3 (definition of 'harm').
This list does not limit the matters which may be taken into account in determining what is in the best interests of a child.[128] The Act does not specify the weight which must be given to each of these considerations.
[128] Act, s 8(2).
Section 9 of the Act prescribes the principles which must be observed in administering the Act. These include the principle that:
(a)the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;[129]
(b)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;[130]
(c)every child should be cared for and protected from harm and live in an environment free from violence;[131]
(d)a child's parents and any other people who are significant in the child's life should be given adequate information about: the decision-making processes under the Act that are likely to have a significant impact on the child's life; and the outcome of any decision about the child, including an explanation of the reasons for the decision.[132]
[129] Act, s 9(a).
[130] Act, s 9(b).
[131] Act, s 9(c), s 9(d).
[132] Act, s 9(k).
Section 10 of the Act makes it plain that where a decision is likely to have a significant impact on a child's life, the child should be able to participate in the decision making process and be given adequate information about the ways in which they can participate in the decision making process and express their wishes and views. A decision about placement arrangements as well as the review of care plans are expressly provided as matters that are likely to have a significant impact on a child's life.[133]
[133] Act ss 10(3)(a), (b).
Section 12 of the Act sets out the principles that apply to placement decisions for Aboriginal and Torres Strait Islander children. The Act specifically notes that the objective is to maintain a connection with family and culture for Aboriginal and Torres Strait Islander children who are the subject of placement arrangements[134] and that it is a priority that the placement be with a member of the child's family.[135] Before making any placement decision in respect of an Aboriginal child, the CEO is required to consult with at least one of: an officer who is an Aboriginal person; an Aboriginal person who, in the opinion of the CEO, has relevant knowledge of the child, the child's family or the child's community; and an Aboriginal agency that, in the opinion of the CEO, has relevant knowledge of the child, the child's family or the child's community.[136]
[134] Act, s 12(1).
[135] Act, s 12(2).
[136] Act, s 81.
As noted above, the child is the subject of a protection order under the Act, s 57(1). Pursuant to the Act, the CEO has parental responsibility for the child to the exclusion of any other person.[137]
[137] Act, s 57(2).
As a child under the care of the CEO, the CEO was required to prepare and implement a care plan for the child.[138] A 'care plan' means a written plan that:[139]
(a)identifies the needs of the child; and
(b)outlines steps or measures to be taken in order to address those needs; and
(c)sets out decisions about the care of the child including:
(i)decisions about placement arrangements; and
(iia)secure care decisions referred to in s 88G; and
(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life.
[138] Act, s 89(2).
[139] Act s 89(1).
The CEO can modify the care plan at any time if thought appropriate to do so.[140] If the plan is modified, as soon as is practicable after the modification, the CEO is required to provide a copy of the modified care plan to the child and any other person who has a direct and significant interest in the wellbeing of the child (in this case, the applicant).[141] In any event, the CEO is required to review the care plan at regular intervals not exceeding 12 months.[142] In reviewing the care plan, the CEO must have regard to any views expressed by the child, a parent of the child, any carer of the child and any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.[143] The CEO is required to prepare a written report on the outcome of the review and provide that report to the child, a parent of the child, any carer of the child and any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.[144]
[140] Act, s 89(4).
[141] Act, s 89(6)(a), s 89(6)(d).
[142] Act, s 90(1)
[143] Act, s 90(2).
[144] Act, s 90(3).
Within 14 days of receipt of a modified care plan, the applicant can apply to review a care planning decision.[145] The CEO is required to refer any application to the care plan review panel.[146] The care plan review panel, after considering the application and any other material, reports to the CEO on its recommendations in respect of the application.[147] The CEO must consider the report and must confirm, vary or reverse the previous care planning decision; substitute another decision; or refer the matter back to the care plan review panel for further consideration.[148] The CEO must give written notice of his or her decision and the reasons for it.[149]
[145] Act, s 93(1), s 93(3).
[146] Act, s 93(4).
[147] Act, s 93(5).
[148] Act, s 93(6).
[149] Act, s 93(7).
The applicant can apply to the State Administrative Tribunal for a review of this decision.[150] The review of the CEO's decision is a hearing de novo.
[150] Act, s 94.

Proper construction of s 79(3) of the Act

Section 79(3) of the Act confers a discretionary power on the CEO (or delegate) to cancel a placement arrangement made in respect of a child and make another placement arrangement in respect of the child.
In exercising the power conferred by s 79(3) of the Act, the decision maker 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 decision maker 'must regard the best interests of the child as the paramount consideration'. In determining what is in the child's best interests, the decision maker must take into account the mandatory relevant considerations identified in s 8(1) of the Act and observe the principles set out in s 9 of the Act.
In considering the exercise of a power under a different section of the Act, Mitchell J in YPW v Chief Executive Officer, Department for Child Protection stated:[151]
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.[152] 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.[153] 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.
He went on to state that:[154]
Another implicit condition for the valid exercise of the power conferred by s 37(2) of the Act is that the power be exercised in good faith, without fraud and for the purposes for which the power was conferred.[155]
[151] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [181].
[152] Zheng v Cai [2009] HCA 52, (2009) 239 CLR 446 [28]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636[97].
[153] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332[24] ‑ [29], [63], [88] ‑ [92].
[154] YPW v Chief Executive Officer, Department for Child Protection [192].
[155] See the discussion in Aronson and Groves, Judicial Review of Administrative Action, 5^th ed (2013) at 311 [5.470] ‑ [5.510] and Commissioner of Taxation v Futuris Corporation Pty Ltd [2008] HCA 32; (2008) 237 CLR 146 [11] ‑ [14], [60].
In my view, his Honour's comments correctly summarise the approach that must be taken in considering the exercise of power under s 79(3) of the Act.

Validity of third respondent's decision

I now turn to consider the grounds on which the applicant challenges the third respondent's decision.

Denial of procedural fairness

The applicant submitted that natural justice required the respondents to give the applicant's responses to any concerns raised by the respondents 'genuine, realistic and proper consideration'.[156]
[156] Applicant's submissions dated 30 July 2019, par 67.
In Carrascalao v Minister for Immigration and Border Protection, the Full Court of the Federal Court discussed the dangers associated with this expression as follows:[157]
The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review.
The provenance of the expression was identified by the High Court in SZJSS at [26] as Gummow J's judgment in Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 713; 14 ALD 291 at 292. There his Honour was addressing the ground of judicial review relating to the exercise of a discretionary power in accordance with a rule or policy and without regard to the merits of a particular case. In the context of describing what was required of the Minister's delegate in considering all relevant material placed before him, Gummow J said that the delegate was required to 'give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy'. In SZJSS, the High Court did not indicate that it was inappropriate to use the expression in that particular context. Naturally, when doing so, the limits of the judicial review function still need strictly to be observed.
The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the ground of judicial review relating to the failure to take into account a mandatory relevant consideration, Courts have acknowledged that its use carries the risk of creating 'a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised'. (citations omitted)
[157] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 [32] ‑ [34].

In my view, the applicant's submission misstates the obligation of the decision‑maker. The decision‑maker was obliged as a matter of law to give proper, genuine and realistic consideration to the merits of the matter in determining whether or not to cancel the child's placement. This required the decision maker to engage in an 'active intellectual process' in considering each of the mandatory relevant considerations set out in s 8 of the Act.[158]
[158] Carrascalao v Minister for Immigration and Border Protection [45].
In respect of the question as to whether the respondent was required to afford the applicant procedural fairness, there are two relevant questions. First, whether the exercise of the power under s 79(3) of the Act required the respondents to observe the principles of procedural fairness. Second, if this was the case, what the principles of procedural fairness required in the particular circumstances.[159]
[159] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
In the absence of a clear contrary legislative intention, it is presumed that the legislature intended that the principles of procedural fairness be observed in the exercise of statutory power.[160] Where a decision‑maker has the power to affect the rights, interests or privileges of a person, they are bound to hear that person before exercising the power.[161] In addition, if the exercise of a power may affect the interests of an individual in a way that is substantially different from the way it may affect the interests of the wider public, the relevant decision-maker will ordinarily be required to consider the interests of that individual before exercising the power.[162] This may be equated with the interest that gives a person 'standing' in public law.[163]
[160] Kioa v West, 609 (Brennan J).
[161] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 360 (Mason J).
[162] Kioa v West, 619 (Brennan J).
[163] Plaintiff S10-2011 v Minister for Immigration and Citizenship [68] (Gummow, Hayne, Crennan and Bell JJ).
It is important to stress that procedural fairness is concerned with the procedure that must be observed by the decision‑maker in arriving at the decision and not the merits of the decision.[164]
[164] Kioa v West, 622 (Brennan J).
There is no universally valid test as to what is required by the doctrine of procedural fairness. The requirements are to be determined by reference to the statutory framework within which a decision‑maker exercises statutory power and will also depend upon the facts and circumstances of the particular case.
In this case, the Act does not include a clear statutory intention to exclude the principles of procedural fairness in respect of a decision under s 79(3) of the Act. I also note that the power in s 79(3) does not require notice to be given to the current carer of an intention to make a decision under this section or inform them of an entitlement to make representations to the decision-maker.
The respondents accepted, quite properly in my view, that a decision to cancel the child's placement with the applicant affected the applicant's interests in a way that was substantially different from the way in which it affected the interests of the wider public. They accepted it was likely that they were required to afford procedural fairness to the applicant.
In respect of the content of this obligation, the obligation to afford procedural fairness is qualified by the paramount consideration in the exercise of any power under the Act – namely, the best interests of the child. As was noted by Brennan J in J v Lieschke:[165]
In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; for example, it may be necessary to keep a welfare report confidential, as in Re K and as provided for in s 89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred.
[165] J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 457.
He went on to state that:[166]
It would offend the deepest human sentiments as well as a basic legal principle to permit a court to take a child from its parents without hearing the parents when they can be heard and when they wish to be heard in opposition to the making of an order. A guardian who has been appointed in loco parentis is no less entitled to be heard. Only by ensuring, where practicable, that the parents or guardians have an opportunity to be heard can the court be confident that it has protected whatever interests the child may have in its parents' or guardians' discharge of their duty to the child.
[166] J v Lieschke, 458.
I respectfully agree with his Honour's comments. In my view, it would offend human sentiment and basic legal principles for a decision to be made to cancel a long‑term placement of a child under s 79(3) of the Act without hearing from the current carer. However, in affording natural justice to the carer, it may be necessary to keep certain information confidential in order to ensure that the paramount consideration is the best interests of the child.
In this case, I am satisfied that the applicant was afforded procedural fairness before the third respondent made the decision to cancel the placement of the child. It is clear from the evidence before this court that on a number of occasions, representatives of the Department of Communities discussed with the applicant various matters concerning her care of the child. These included meetings with the applicant on 9 and 30 May 2018, the signs of safety meeting on 21 June 2018, meetings on 25 and 27 June 2018 and on 5 July 2018, and the telephone conference undertaking the standard of care assessment on 7 August 2018.
I accept that at the standard of care assessment telephone conference on 7 August 2018 the applicant was advised that a possible outcome of the report was that the child would not be returned to her care. I also accept that the concerns of the respondents were put to the applicant and that she was given an opportunity to respond to those concerns.
For these reasons, I consider that the respondents afforded procedural fairness to the applicant before the decision was made to cancel the placement of the child under s 79(3) of the Act and that this ground has not been made out.

Decision was unreasonable, alternatively made in bad faith

In Jacob v Save Beeliar Wetlands (Inc), McClure P usefully summarised the law as follows:[167]
The implied statutory obligation to exercise a statutory discretionary power reasonably is a condition of validity of the exercise of the power: Li [63].
The head note in Li appears to accurately capture the position of the plurality, being that:
'The legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. The standard is addressed to whether the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.'
It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process‑related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision‑maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67] (citations omitted).
[167] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 [66] - [68].
In considering whether there was an unreasonable exercise of the power conferred by s 79(3) of the Act, it is necessary to consider whether it could reasonably be concluded on the information available to the third respondent, having regard to the considerations in s 8(1) of the Act and the principles in s 9 of the Act, that it was in the best interests of the child to cancel the placement of the child with the applicant.
In assessing the reasonableness of the decision‑maker's decision to cancel the placement of the child, it is also relevant to consider the circumstances and time at which the power was exercised, and the period for which the decision would operate. Unlike other sections in the Act, the power under s 79(3) is not required to be exercised immediately or urgently. The decision exercised was also likely to be of long-standing duration.
In considering where the best interests of the child could reasonably be seen to lie, the considerations identified in s 8(1) do not all support one conclusion.
Some of the matters known to the third respondent at the time she made her decision suggest that it was in the best interests of the child to remain in the care of the applicant. It is clear that the applicant and the child had a close relationship (s 8(1)(d)), that the child was happy living with the applicant (s 8(1)(f)), and that the placement was of long duration and had broadly been successful (s 8(1)(g)). In addition, given the length of the child's placement with the applicant, it could reasonably be expected that the loss of stability in the child's living arrangements and separation from the applicant could cause emotional harm to the child (s 8(1)(m)).
I also note there was no evidence that the applicant was ever violent or abusive towards the child. The applicant's violence and abusive behaviour was directed to representatives of the Department of Communities and dramatically escalated after the removal of the child. Whilst this does not, in any way, excuse the behaviour of the applicant, it provides an important context for that behaviour, particularly as the applicant is Indigenous and her mother was part of the 'Stolen Generation'.[168]
[168] Affidavit of VB filed 14 January 2019, par 19.
On the other hand, there were grounds known to the third respondent which suggest it was in the best interests of the child to cancel the placement with the applicant. While living with the applicant, the child witnessed family domestic violence between the applicant and her sisters and the applicant and her son, the child's father, which suggests that the child was not protected from the risk of harm (s 8(1)(a)). The increasingly difficult relationship between the applicant and the Department, particularly in relation to the presence of the child's father at the applicant's house, meant that there was no obvious way in which the Department could protect the child while in the applicant's care. There were also increasing concerns about the capacity of the applicant to provide for the child's needs given the applicant's health, the health issues of the child during 2018, and the information provided by the child about the lack of food available to her at the applicant's house (s 8(1)(c) and (k)).
Conflicting considerations also arise in respect of the principles under s 9 of the Act. The principles that the preferred way of safeguarding and promoting the child's wellbeing is to support the applicant in her care of the child (s 9(b)) and that the child should have stable living arrangements (s 9(e)), support a decision that the child should remain in her placement with the applicant. On the other hand, the principles that a child should live in an environment free from violence (s 9(d)) and be cared for and protected from harm (s 9(c)), point the other way.
The question before me is not to decide where the best interests of the child lie. Rather, the question I am required to determine is whether it was reasonably open to the third respondent to regard the cancellation of the child's placement with the applicant as being in the best interests of the child.
I am not satisfied that the third respondent's decision to cancel the placement of the child with the applicant was an unreasonable decision or that it lacked any evident or intelligible justification. In my view, it cannot be said that no reasonable decision-maker could have decided that the placement should be cancelled if all relevant and no irrelevant considerations were taken into account and taking into account the scope and purpose of the Act.
The determination of where the best interests of the child lay, which involves balancing competing considerations, is a function conferred by the Act on the third respondent and not this court. In my view, the third respondent did not act unreasonably by cancelling the placement of the child with the applicant.
For these reasons, I do not consider this ground has been made out.

Decision maker took into account irrelevant matters

The applicant contends that the third respondent, in making the decision to cancel the placement, relied on a number of irrelevant considerations including: the standard of care assessment report dated 23 August 2018; a statement that the child had a staphylococcus infection without further understanding the impact of this; an unverified allegation of unsupervised contact by the father of the child; and the reaction by the applicant on 2 and 4 July 2018 to information as to where the child was proposed to be placed. In oral submissions, counsel for the applicant clarified that this ground of appeal contended that these matters had not been proven or verified and that, accordingly, they were irrelevant considerations.
In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, Mason J summarised the approach that should be taken in respect of this ground of review in the following terms:[169]
In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. (citations omitted)
[169] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).
Pursuant to the Act, it is clear that the paramount consideration for a decision-maker in exercising a discretion to order the cancellation of a placement under s 79(3) is the best interests of the child. In considering what is in the best interests of the child, the decision-maker is required to have regard to the mandatory considerations set out in s 8(1) of the Act. From the express terms of s 8(2) of the Act, this is a non-exhaustive list.
The applicant submitted that the standard of proof for any findings made by the respondents was the balance of probabilities to a relatively high degree of satisfaction. In making this submission, the applicant relied upon previous decisions of this court[170] and the evidence of the third respondent that similar considerations apply to a decision about placement arrangements as to a decision to bring a child into care in the first place.[171] I note that the decisions on which the applicant relies are protection proceedings where the Act specifies that the standard of proof is proof on the balance of probabilities.[172]
[170] S v Paskos (1992) 8 WAR 561, 566; CEO of the Department of Child Protection and Family Support v SMD [2016] WASC 123 [35].
[171] Affidavit of Andrea Maree Nixon sworn 27 May 2019, par 48.
[172] Act, s 151.
Ultimately, this question is one of statutory interpretation of s 79(3) of the Act. In my view, even if the information and other material properly before the decision‑maker does not establish facts to a civil standard of proof to a high standard, this does not mean that the material is irrelevant to the exercise of the discretion under s 79(3) of the Act. The critical question is whether on all the information before the decision‑maker, the decision‑maker forms the view that it is in the best interests of the child, taking account of the matters in s 8 and s 9 of the Act, to cancel the placement of the child and make another placement arrangement. The weight that is accorded to particular facts or information will depend on all the circumstances, including the apparent probative value of that information and the source of the information.
In respect of the matters raised by the applicant, there is no evidence before this court which indicates that the third respondent took into account in making her decision a statement that the child had a staphylococcus infection. In any event, the report received by the department from a medical practitioner who had examined the child was that the child was a staphylococcus carrier and presented with a number of other medical issues in late May 2018. These matters concerned the physical well-being of the child, which the decision-maker was required, under s 8(1)(k) of the Act, to take into account.
In respect of unsupervised contact with the father, the standard of care assessment referred to reports that the child had been left in the sole care of the father and that the father was living in the house, as well as reports from teachers at the child's school that the father collected the child from school by himself. The assessment records that the applicant denied he ever stayed with her although she deposes in her affidavit that he stayed with her when she (the applicant) was sick to look after her.[173] In my view, it cannot be said that an allegation of unsupervised contact with the father, which would be a breach of the agreed contact arrangements, and the applicant's response to that allegation, is irrelevant. Consideration of whether the applicant is taking steps to enforce contact arrangements put in place to ensure the safety of the child forms part of the mandatory consideration of the need to protect the child from harm (s 8(1)(a)).
[173] Affidavit of VB filed 14 January 2019, par 48.
For these reasons, I do not consider this ground has been made out.

Decision maker failed to take into account relevant matters

The applicant contends that the respondents failed to take account of a number of relevant factors including the results and agreed outcomes of a signs of safety meeting on 21 June 2018, the strengths of the applicant, and the wellbeing enjoyed by the child, as well as a number of the factors set out in section 8 of the Act.
In Jacob v Save Beeliar Wetlands (Inc), the Court of Appeal summarised when the failure to take into account a relevant matter will constitute a jurisdictional error as follows:[174]
A relevant consideration is one which the decision‑maker is obliged to take into account in the course of reaching the decision or conduct under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39. The legislation imposing the obligation to decide (or in this case, report and recommend) may expressly identify particular matters that must be considered or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Any obligation to take into account a relevant consideration relied on as giving rise to jurisdictional error must of necessity be a condition of the validity of the decision.
Thus, in order to constitute a jurisdictional error that entitles a court to quash an administrative decision, the consideration not taken into account must be (1) relevant, (2) mandatory and (3) result in invalidity.
In the absence of an express provision, the question whether the legislative intent is that invalidity should result from the failure to comply with an express or implied statutory condition gives rise to a contestable judgment: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389.
The duty to take into account relevant considerations is confined to the decision‑making process. It does not extend to the content of the reasons for the decision or recommendation, although the reasons are inevitably relied upon as evidence of a claim that the decision‑maker failed to take into account a relevant consideration. However, as decision‑makers who are required to give reasons are not obliged to canvass all matters or evidence that have been taken into account, the failure to refer to a relevant consideration in the reasons (or report) is necessary, but not determinative.
[174] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 [50] - [53].

I also note that not every consideration that a decision-maker is required to take into account but does not will justify the court setting aside the decision and ordering that the discretion be re‑exercised according to law. If the factor was insignificant and the failure to take it into account could not have materially affected the decision, the decision will not be set aside.[175]
[175] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, 40 (Mason J).
Any decision by the third respondent to cancel the placement of the child with the applicant was required to be made with the paramount consideration of the best interests of the child. The third respondent was required to take into account each of the mandatory relevant considerations set out in s 8(1) of the Act, although the weight to be attributed to each of these matters was a matter for the decision‑maker. Pursuant to s 10 of the Act, as a decision under s 79(3) is one which is likely to have a significant impact on the child's life, the child needed to be given an opportunity to participate in the decision-making process and to express her wishes and views.
The third respondent's evidence was that she considered all the evidence gathered and that in making her decision, she generally takes into account what the child has said.
There is no evidence before me to suggest that the child was given an opportunity to participate in the decision‑making process or that her views were sought in relation to the matter. The only evidence is that on 7 August 2018, the child was given reasons as to why she was not able to live with the applicant and that the child stated that she was enjoying her temporary placement with A and M, but was missing the applicant. In my view, this exchange did not provide the child with an opportunity to participate in the decision-making process; it simply informed the child of the decision that had been made that she remain in her temporary placement.
The opportunity to be afforded to the child was a matter that was a mandatory relevant consideration in assessing the best of the child under s 8 of the Act, specifically required under s 10 of the Act and consistent with the charter of rights that governed the care of the child. Given the provisions of s 10 of the Act, it cannot be said that this was an insignificant factor. The failure to seek the views of the child is, in my view, a jurisdictional error.
Given this finding, it is unnecessary for me to consider the other matters raised by the applicant. For these reasons, I consider this ground has been made out.

Remedy

The applicant seeks a declaration that the decision is unlawful together with writ of certiorari quashing the decision of the third respondent and a writ of mandamus directing the decision-maker to make the decision according to law.
It is well settled that certiorari is a discretionary remedy[176] and that as a matter of discretion an order for the issue of a writ of certiorari should not be made if the court considers it would be a futile remedy or there is a more convenient and satisfactory alternate remedy.[177]
[176] Gudgeon v Black (1994) 14 WAR 158, 177 ‑ 178 (Malcolm CJ) referred to in Varney v Parole Board of Western Australia [2000] WASCA 393 [87].
[177] Mulholland v Winslow [2016] WASC 405 [79].
In exercising my discretion, it is necessary that I have regard to s 7 of the Act which stipulates that the paramount consideration in my decision is the best interests of the child.

Discretionary factors

The respondents submit that the remedies sought by the applicant should be denied on discretionary grounds because the applicant had a suitable alternative to challenge the decision by way of the process set out in the Act, s 91 – s 95. This process required the child's care plan to be revised and provided to the applicant which then gave rise to a merits review.
The evidence before me is that the child's care plan was not revised at the time the placement was cancelled and was not, in fact, revised until February 2019, after the commencement of these proceedings. There is no evidence before me as to whether the applicant was provided with a copy of the revised plan, although she was required to be provided with it under the Act (s 89(6)). In fact, when the applicant requested a copy of the revised care plan, she was told to make a freedom of information request. In these circumstances, I do not accept that the applicant had a suitable alternative to commencing these proceedings in January 2019.
However, since the third respondent's decision to cancel the placement of the child with the applicant and the commencement of these proceedings, the child's care plan has been the subject of an annual review. Under the Act, the care plan is required to include any decision about placement arrangements. The current care plan maintained the decision to place the child with her current carers. The applicant exercised her rights under the Act to seek a merits review of the current care plan. The applicant has a right to appeal this decision to the State Administrative Tribunal. For this reason, the applicant has available to her a more appropriate avenue to review the current placement arrangement of the child.
The most that the applicant could achieve from this application is to have the third respondent's decision to cancel the placement set aside and the application sent back to the third respondent for reconsideration. In that event, the applicant could contend that the child should be returned to her care, although the third respondent would not be required to return the child to her care.
If I do not order any remedy, save for the observations I make below, the applicant's position is not substantially different. The applicant can appeal the decision of the CEO to confirm the current care plan to the State Administrative Tribunal and argue before that Tribunal that the child should be returned to her care.
As matters stand, the applicant is entitled to appeal the decision of the CEO in respect of the current care plan of the child. Any appeal would include consideration of the current placement of the child. It is in the child's best interests that decisions concerning the placement of the child be based on the most up‑to‑date information.
In reaching my conclusion, it must be said that the process adopted by the respondents in making the various decisions concerning the care and placement of the child and the lack of information provided to the applicant about that process has, in my view, significantly contributed to the undoubted distress and frustration of the applicant. In this regard, I note that the applicant has never been formally advised of the decision to cancel the placement or the reasons for this decision. Rather, she was initially informed that the decision that was made was to withdraw her as a family carer of the child. It was only in May 2019, more than three months after the commencement of these proceedings, that she was informed that this was an error and her carer approval had not been revoked.
In addition, in breach of the requirements of the Act, the child's care plan was not updated until February 2019. Had this been modified and provided to the applicant 'as soon as is practicable' after the decision to cancel the placement had been made, the applicant would have been entitled to a merits review of the third respondent's decision. This opportunity was lost because of the respondents' delay, for which no explanation has been provided. As was put to me by the applicant in support of a submission that I should exercise my decision to issue a writ of certiorari, the issue this has created is that the decision by the third respondent to cancel the placement of the child with the applicant and to make another placement decision has now become the 'status quo'.[178]
[178] Applicant's submissions in reply, par 27.
Finally, I note that the completion of the safety and wellbeing assessment of the child was well in excess of the timeframe of 30 days set out in the casework practice manual.
As was noted by the Court of Appeal in SH v Chief Executive Officer of Department of Communities:[179]
Delays of this kind, in our view, have the real potential to disrupt the proper care planning required by the CCS Act. Particularly given the statutory requirement that the care plan be reviewed at least every 12 months,[180] in our view the CCS Act evinces a legislative intention that reviews under pt 4, div 5, subdiv 4 of the Act will be carried out in a timely manner, and preferably as soon as possible within the 12 month currency of relevant care planning decisions. Delay in the review of a care plan, and parallel reviews of the same care plan are, by reason of the uncertainty they introduce into the life of the relevant child, undesirable.
[179] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [103].
[180] Act, s 90(1).
I respectfully agree with these comments.
It is apparent that the Department's failure to comply with the Act and its own policy documents has caused significant distress to the applicant who clearly loves the child deeply and feels strongly that she has been 'legally wronged'.[181]
[181] Applicant's submissions in reply, par 31.
However, any additional review or decision-making process will only create further uncertainty in the child's life. In my view, the best interests of the child are served by declining to exercise my discretion to make any orders as a consequence of the error of law I have identified.
For these reasons, I do not exercise my discretion to make any orders consequential on the error of law that has been identified.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
30 AUGUST 2019