YPW v Chief Executive Officer, Department for Child Protection - [2015] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: YPW -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2015] WASC 123

CORAM: MITCHELL J

HEARD: 1 APRIL 2015

DELIVERED : 10 APRIL 2015

FILE NO/S: CIV 1380 of 2015

BETWEEN: YPW
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
First Respondent
SARAH GABRIELLE CLANCY
Second Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Judicial review - Child protection - Immediate and substantial risk to a child's wellbeing - Suspicion on reasonable grounds - Decision to take child into provisional protection and care without a warrant - Unreasonable exercise of discretion - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 9, s 28, s 29, s 37

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Ms R Young
Second Respondent       :     Ms R Young
Intervener:     Mr B D Nelson

Solicitors:

Applicant:     In person
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia
Intervener:     State Solicitor for Western Australia

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
CEO, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
CEO, Department for Child Protection v Scott [No 2] [2008] WASCA 171
Cotchilli v State of Western Australia [2008] WASC 103
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 218
Federal Commissioner of Taxation v Futuris Corporation Pty Ltd [2008] HCA 32; (2008) 237 CLR 146
Feldman v Buck [1966] SASR 236
Frigger v Kitay [No 8] [2015] WASC 104
George v Rockett (1990) 170 CLR 104
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hussien v Chong Fook Kam [1970] AC 942
JT v CEO, Department for Child Protection and Family Support [2014] WASC 200
Levy v Victoria (1997) 189 CLR 579
Livesey v NSW Bar Association (1983) 151 CLR 288
M v M (1988) 166 CLR 69
Mandurah Enterprises v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
MCL v CEO, Department for Child Protection [2015] WASC 39
Meredith v CEO, Department for Child Protection [2014] WASC 265
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
O'Hara v Chief Constable of Royal Ulster Constabulary (1997) 1 All ER 129
Plaintiff M70/2011 v Minister for Immigration [2011] HCA 32; (2011) 244 CLR 144
Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636
PVS v CEO, Department of Child Protection [2009] WASCA 234
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
S (a child) v CEO, Department for Child Protection [2008] WASC 229
Zheng v Cai [2009] HCA 52, (2009) 239 CLR 446
TABLE OF CONTENTS

Summary
Statutory background

Objects, considerations and principles
Investigations and authorised officers
Protection applications
Provisional protection and care
Obligation of the first respondent on exercise of power under s 37(2) of the CCS Act
End of provisional care and protection
Appeals against, and review of, decisions of the Children's Court

Evidence

Affidavits
The applicant's evidence
The second respondent's evidence
Other evidence

Factual background

April 2014 Decision of the Children's Court
Events from April 2014 to February 2015
Events of 1 ‑ 2 March 2015
Interview of children on 3 March 2015

Interview with A
Interview with R

Second respondent's assessment
Subsequent events
Proceedings in the Children's Court

Application for judicial review

Procedural matters
Intervention by Attorney General
Grounds on which judicial review is sought

Proper construction of s 37(2) of the CCS Act

Jurisdictional fact
Subjective component
Objective component

Discretion
Temporal considerations
Malice and fraud

Validity of the second respondent's decision

Ground 1: malice
Ground 2: reasonableness

Subjective suspicion
Reasonable grounds
Discretion

Ground 3: consideration and application of principles in s 9 of the CCS Act
Other matters

Consequences of conclusion that the second respondent's decision is valid
Validity of the interim order

Remedies
Future proceedings in the Children's Court

Orders

MITCHELL J:

Summary

The applicant seeks judicial review of a decision of the second respondent which placed her children, to whom I shall refer as A and R or 'the children', into 'provisional protection and care'. That decision was purportedly made by the second respondent as an officer of the Department of Child Protection (Department) under the Children and Community Services Act 2004 (WA) (CCS Act). The children were 6 and 8 years old respectively when they were taken into provisional protection and care on 3 March 2015.
It is important to appreciate at the outset, that the question raised by this application is whether the second respondent's power under s 37(2) of the CCS Act was lawfully exercised. This is not a review of the merits of her decision. Parliament has invested the responsibility for determining whether a child should be taken into care under s 37(2) of the CCS Act in the second respondent, not this court. The present judicial review application is not to be determined by reference to what this court thinks is in the best interests of the applicant's children. The question for this court is whether the second respondent has satisfied the conditions for the valid exercise of the statutory power conferred on her by s 37(2) of the CCS Act.
The second respondent's decision was made on 3 March 2015 under s 37(2) of the CCS Act. An express condition for the valid exercise of that power is that the officer 'suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing'. An implied condition for the valid exercise of that power is that the discretion to take the children must be exercised reasonably and in good faith.
The effect of the second respondent's decision, if valid, was to give the children the status of children in provisional protection and care, a status which they would lose only on the occurrence of one of the events identified in s 29(3) of the CCS Act. While they have that status, the children are in the care of the first respondent, who will have responsibility for the day‑to‑day care, welfare and development of the children to the exclusion of any other person: s 29(2).
The applicant was self‑represented, and English is not her first language. Her grounds for seeking judicial review are rather prolix and attempt to raise a number of matters which are not capable of properly founding an application for judicial review. However, it is apparent from her grounds that, in substance, she alleges that there were no reasonable grounds for the second respondent to suspect that there was an immediate and substantial risk to her children's wellbeing and that the discretion under s 37(2) of the Act, if it arose, was not reasonably exercised. She further alleges that the discretion was exercised in bad faith and without proper regard to the principles identified in s 9 of the CCS Act. Those matters, if established, would demonstrate the purported exercise of the statutory power to be invalid and, subject to certain discretionary considerations, lead to the grant of relief quashing the decisions and ordering the return of the children to the applicant's care.
Having reviewed the evidence, I have concluded that the second respondent did suspect, on reasonable grounds, that there was an immediate and substantial risk to the children's wellbeing when she exercised her power on 3 March 2015. I am also of the view that the second respondent did not exercise her discretion to take the children into provisional protection and care unreasonably, maliciously or without observing the principles identified in s 9 of the CCS Act. The children were validly taken into provisional protection and care on 3 March 2015.
The applicant also seeks to challenge a decision of the Children's Court constituted by a magistrate, made on 10 March 2015, to make an interim order under s 133(2) of the CCS Act that each of the children 'is in provisional protection and care'. Given my conclusion as to the validity and effect of the second respondent's decision, the magistrate's interim order would not have had any actual effect on the rights of the applicant or the responsibilities of the first respondent in relation to the children. The interim order is, in my view, best understood as an order that the children remain in provisional care and protection until further order of the Children's Court. So understood, the order was validly made, but does not have any practical legal effect on the rights or obligations of the parties to these proceedings.
I will explain my reasons for reaching these conclusions in greater detail below. In order to explain my reasons it is, however, necessary that I first deal with the statutory and factual background to this application for judicial review.

Statutory background

Objects, considerations and principles

Part 2 of the CCS Act identifies the objects of the Act and a number of important general considerations and principles which inform the content and exercise of the statutory powers contained elsewhere in the Act.
The objects of the Act of central relevance to the present application are identified in s 6 of the CCS Act in the following terms:
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care.
Section 7 of the CCS Act establishes the best interests of the child as the paramount consideration:
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
Section 8 of the Act identifies mandatory relevant considerations which must be taken into account in determining what is in a child's best interests. Those considerations include the need to protect children from harm and the capacity of the child's parents to protect the child from harm.[1] 'Harm' for these purposes includes harm to the child's physical, emotional and psychological development.[2]
[1] Section 8(1)(a) and (b) of the CCS Act.
[2] Section 3 of the CCS Act (definition of 'harm').
In determining where the best interests of a child lie, s 8 also requires account to be taken of:
(g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i)the child's parents; or
(ii)a sibling or other relative of the child.
And:
(m)the likely effect on the child of any change in the child's circumstances.
The list of considerations in s 8 of the CCS Act is not exhaustive,[3] and I have not set out all relevant considerations above. The considerations which I have identified highlight the tension which may be inherent in determining what is in the best interests of a child exposed to 'harm', broadly defined, while in the care of their parents. The provisions of s 8 recognise the harm which may be caused to a child by separating a child from his or her parents. In some cases the extent of the harm to which the child is exposed while in his or her parents' care may be such that it is clearly in the child's best interests to be taken into care, notwithstanding the potential harm that will result from the child being separated from his or her parents. For example, where a child is exposed to serious sexual or physical abuse it may be clear that the risk of harm as a result of separation from parents is outweighed by the risk of physical and psychological trauma faced by the child in his or her parents' care. In other cases, where the degree of harm to which a child is exposed is less gross, difficult questions of judgment and balancing of risk arise in determining what is in the child's best interests. Where a child may be exposed to a risk of harm if left in his or her parents' care, and may be exposed to a different kind of harm if removed from the parents' care, then ascertaining what is in the child's best interests can involve an assessment of which approach is less deleterious.
[3] Section 8(2) of the CCS Act.
The tension between the competing considerations which may inform the determination of what is in a child's best interests is also evident in s 9 of the CCS Act, which identifies principles to be observed in the administration of the Act. That section recognises that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing, and 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.[4] 'Wellbeing' is defined to include the care, development, health and safety of the child.[5]
[4] Section 9(a) and (b) of the CCS Act.
[5] Section 3 of the CCS Act (definition of 'wellbeing').
However, s 9 of the CCS Act also includes the principles that that every child should be cared for and protected from harm, every child should live in an environment free from violence and every child should have stable, secure and safe relationships and living arrangements.[6] Tension between these principles can arise in circumstances where these aspirations are not achieved while the child is in the care of his or her parents.
[6] Section 9 (c)-(e) of the CCS Act.
Section 9(f) of the CCS Act establishes a principle that intervention action by the first respondent should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. For these purposes 'intervention action' is making an application for a warrant (provisional protection and care), taking the child into provisional protection and care under s 37 or making a protection application.[7] This principle may provide an answer where there are other means of avoiding harm altogether, but the dilemma remains where harm cannot be avoided altogether. Where harm to the wellbeing of a child cannot be avoided other than by intervention action, a difficult judgment remains in balancing the harm to which the child is exposed in his or her parents' care against the harm which may result in separating the child from his or her parents.
[7] Section 9(f) read with s 32(2) of the CCS Act.
The objects, considerations and principles which I have identified inform the content and exercise of the various statutory powers conferred by the Act. A controlling consideration is the statutory imperative to exercise the powers having regard to the best interests of the child as the paramount consideration. The provisions to which I have referred emphasise the importance of the parental role, and that intervention action should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing. In cases where a child is exposed to harm in his or her parents' care, a difficult assessment may be required to determine where the best interests of the child lie.

Investigations and authorised officers

If satisfied that action should be taken to safeguard a child's wellbeing, the first respondent can cause an investigation to be undertaken by an 'authorised officer' for the purpose of ascertaining whether the child may be in need of protection.[8] In the course of the conduct of an investigation, an authorised officer can have access to the child at school if the officer believes on reasonable grounds that it would be in the best interests to have access to the child before the parents became aware of the investigation or if the parents' knowledge would jeopardise the proper and effective conduct of the investigation.[9]
[8] Section 32(1)(d) of the CCS Act.
[9] Section 33(1), of the CCS Act.
The power to take a child into provisional protection and care under s 37(2) of the Act is also conferred on an 'authorised officer'.[10] An authorised officer is a person authorised by the first respondent under s 25 of the CCS Act. An Instrument of Authorisation dated 25 May 2011 identifies the officers that are authorised for certain purposes under the CCS Act.[11] There was no dispute that the second respondent is an authorised officer for relevant purposes in this case.

Protection applications

[10] Section 37(1) of the CCS Act.

[11] Attachment SGC1 to Affidavit of Sarah Gabrielle Clancy affirmed 30 March 2015.

Section 44 of the CCS Act authorises the first respondent to make a protection application to the Children's Court. The application must specify the type of protection order sought and the grounds under s 28(2) on which the application is made.
Section 28(2) of the CCS Act contains an exhaustive definition of when a child is 'in need of protection'. Potentially relevant aspects of that definition are that a child is in need of protection if:
(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i)physical abuse;
…
(iii)emotional abuse;
(iv)psychological abuse;
(v)neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d)the child has suffered, or is likely to suffer, harm as a result of … the child's parents being unable to provide, or arrange the provision of, adequate care for the child.
'Neglect' for these purposes includes a failure by a child's parents to provide, arrange, or allow the provision of adequate care for the child.[12]
[12] Section 28(1) of the CCS Act (definition of 'neglect').
Section 45 and s 46 of the CCS Act provide for the manner in which the Children's Court is to deal with a protection application, in the following terms:
45.Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
(a)make the protection order sought in respect of the child; or
(b)make another protection order in respect of the child.
46.No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
The CCS Act provides for a number of different kinds of protection order:
1.A protection order (supervision), which provides for the first respondent to supervise the wellbeing of the child.
2.A protection order (time limited), which gives the first respondent parental responsibility for a child for the period specified in the order.
3.A protection order (until 18), which gives the first respondent parental responsibility for a child until the child reaches 18 years of age.
Section 133 of the Act, to which I shall return in more detail, empowers the Children's Court to make interim orders at any time in the course of protection proceedings.

Provisional protection and care

The CCS Act provides for three means by which a child may be brought into provisional protection and care.
First, a child may be brought into provisional protection and care by the execution of a warrant (provisional protection and care) issued by a judge or magistrate under s 35 of the CCS Act.[13] The grounds on which an authorised officer may apply for such a warrant are that the officer believes that the child in in need of protection and either:[14]
(b)believes that leaving the child at the place where the child is living poses an unacceptable risk to the child's wellbeing; or
(c)believes that if a parent of the child or other person becomes aware of a proposed protection application in respect of the child, the child will be moved from the place where the child is living and the officer will be unable to find the child.
[13] Section 123(2)(d) of the CCS Act.
[14] Section 35(1)(b) and (c) of the CCS Act.
Secondly, an authorised officer or a police officer may, at any time, take a child into provisional protection and care if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing. The exercise of this power, contained in s 37(2) of the CCS Act, does not require a warrant.
Thirdly, when the first respondent makes a protection order application, the Children's Court may make an interim order under s 133(2)(b) of the CCS Act that the child is to be taken into provisional protection and care. The court is also given power by that provision to make an order that the child remain in provisional protection and care.
When a child is placed in provisional protection and care in the exercise of one of these powers, s 29(2) of the CCS Act provides that:
the CEO, subject to any interim order in respect of the child, has responsibility for the day‑to‑day care, welfare and development of the child to the exclusion of any other person.

Obligation of the first respondent on exercise of power under s 37(2) of the CCS Act

Section 38 of the CCS Act imposes various obligations on the first respondent where a child, who is not already subject to protection proceedings, is taken into provisional protection and care under s 37 of that Act. In the circumstances of the present case the first respondent was required either to:
(a)make a protection application or other application under pt 4 of the Act as soon as practicable, but in any event not more than two working days, after the children were taken into provisional protection and care;[15] or
(b)ensure that, as soon as practicable after the children were taken into provisional protection and care, the children were returned to or placed in the care of the applicant.[16]
[15] Section 38(4)(b) of the CCS Act.
[16] Section 38(2) of the CCS Act.
If a protection application is made in respect of a child, the Court must endeavour to ensure that the first listing date is not more than three working days after the application is made.[17]

End of provisional care and protection

[17] Section 38(5) of the CCS Act.

Section 29(3) of the Act defines the point at which a child ceases to be in provisional protection and care. Relevantly for this case, the provisional protection and care of the applicant's children would cease:
(a)if the first respondent decided not to make an application under pt 4 of the Act after the children were taken into provisional care and protection under s 37(2) of the Act, and returned the children to the applicant;[18]
(b)if the Children's Court made an interim order that the children be returned to the applicant;[19]
(c)if the Children's Court made an interim order that the children be placed with some other person approved by the Court;[20] or
(d)if the Children's Court makes a protection order in respect of the children or refuses to make such an order.[21]

Appeals against, and review of, decisions of the Children's Court

[18] Section 29(3)(a) read with s 38(2) of the CCS Act.

[19] Section 29(3)(b) read with s 133(2)(a) of the CCS Act.

[20] Section 29(3)(c) read with s 133(2)(c) of the CCS Act.

[21] Section 29(3)(d) of the CCS Act.

The Children's Court is established by the Children's Court of Western Australia Act 1988 (WA) (CCWA Act). The CCWA Act makes provision for appeals against, and the review of, decisions of the Children's Court.
Section 42 of the CCWA Act provides for an appeal by a parent of a child to this court against 'any finding, order or other decision on the hearing of an application under pt 4 or pt 5 of the' CCS Act. Such an appeal is available where the finding, order or other decision is made by the Children's Court constituted by a magistrate. The appeal is to be made in accordance with pt 2 of the Criminal Appeals Act 2004 (CP Act), as if the decision was made by a court of summary jurisdiction.
In the present case the Children's Court's order of 10 March 2015 was made under s 133 of the CCS Act (which is in pt 5 of that Act) on the application of the first respondent.
Section 4(1)(b) of the CCWA Act applies s 35 and s 36 of the Magistrates Court Act 2004 (WA) (MC Act) to the Children's Court in the same way that those provisions apply to and in relation to the Magistrate's Court.
Section 35 of the MC Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer.
Section 36 of the MC Act provides for a statutory form of judicial review of orders of a court officer, which enables a person aggrieved to apply for a review order. However, s 36(5)(a) of the MC Act provides that, on an application for a review order, this court may, if it considers that an appeal lies under the CP Act in respect of the order, order that the application be treated as if it were such an appeal and deal with the matter accordingly.

Evidence

Affidavits

The principal evidence in this application comprised an affidavit of the applicant sworn on 31 March 2015 and an affidavit of the second respondent affirmed on 30 March 2015. The second respondent was cross‑examined on her affidavit at length by the applicant.
Although the applicant's affidavit contained material which does not comply with the rules of evidence, the respondents did not object to the admission of the evidence contained in that affidavit. The respondents were content for me to receive the evidence and give it such weight as I thought appropriate.

The applicant's evidence

In considering the applicant's evidence it is necessary to make allowances for a number of matters.
First, although the applicant is able to effectively communicate her meaning in English both by speaking and writing, English is not her first language. In court she was able to speak to the court generally without the aid of an interpreter, but requested the assistance of an interpreter to assist her in understanding what was being said by others in the court.
I digress to note that, unfortunately, the interpreter who was engaged to assist the applicant in court was unable to remain in court on the afternoon of the hearing. When that became apparent, I gave the applicant the option of proceeding without an interpreter that day or adjourning to a time when a replacement interpreter could be found. In view of the urgency of the matter, the applicant indicated her wish to proceed in the absence of an interpreter. By the time the interpreter had to leave, all of the evidence had been received. The applicant was able to effectively make her submissions in the afternoon. As I have noted, the applicant had not generally utilised the assistance of an interpreter in speaking to the court. The respondents and Attorney General generally relied on comprehensive written submissions which they had filed before the hearing. The appellant responded to the respondent's submissions in writing, in an outline provided to the court on the day of the hearing. The respondents' oral submissions responded to questions which I asked about the matter, many of which were of such a technical nature that I suspect the applicant, who does not have legal training, would have had difficulty in following with or without an interpreter. In the circumstances, I am satisfied that the absence of a qualified interpreter during the afternoon of the hearing did not occasion any unfairness to the applicant.
Secondly, the applicant is a relatively recent immigrant to this country from the People's Republic of China, which has a very different legal system to our own. She is clearly a very intelligent woman, with university degrees from the United Kingdom and China, and has worked for 13 years as a journalist in China. However, the applicant does not have any legal training or qualification, and the Australian court process must be a foreign experience for her.
Thirdly, the subject matter of these proceedings is a matter of great emotional concern to the applicant. As I shall explain, the applicant has a tumultuous history with the Department, and this is not the first occasion on which the applicant's children have been taken into the care of the Department. Whatever might be said of her capacity to provide proper care for the children, she clearly loves them, and has found the Department's interventions to be deeply traumatising. Given the subject matter of the proceedings, it should not be held against the applicant if her responses to the taking of the children are somewhat emotional and not entirely logical.
In reading the applicant's affidavit I make allowances for all of the above matters. However, even making those allowances, I cannot regard much of what is contained in the applicant's affidavit as credible or reliable. The affidavit contains a number of very serious, if sometimes outlandish and inherently implausible, allegations against various persons whom the applicant regards as having acted against her.
For example, the applicant alleges that in 2013 her former husband and an employee of the Department who was his lover made secret arrangements to kidnap her children.[22] She alleges that the second respondent forcibly, violently and under false pretences stole the children from the applicant's custody under the pretext that that they were subject to an immediate and substantial risk.[23] The first respondent is alleged to have abused his powers and the second respondent is alleged to have acted with malice.[24]
[22] Applicant's affidavit par 16.
[23] Applicant's affidavit par 20.
[24] Applicant's affidavit pars 24 ‑ 27.
The applicant's affidavit makes these allegations but does not contain any evidence tending to establish the truth of the allegations. The applicant's affidavit does not disclose that she has any proper basis for making such serious allegations. The mere incorporation of bare allegations into an affidavit does give them the status of evidence proving the truth of the allegations.
I infer from the applicant's affidavit that she has a tendency to make serious, unsubstantiated and unwarranted allegations of misconduct against persons who she regards as responsible for the removal of her children from her care. I therefore view with considerable circumspection allegations which the applicant makes about persons involved in the process of removing the children from the applicant's care.

The second respondent's evidence

As I have noted, the second respondent was extensively cross‑examined by the applicant. The second respondent impressed me with her measured and professional response to the questions put to her by the applicant. She struck me as a witness who was careful to ensure that her evidence was accurate. The second respondent was clearly frustrated at some points by the serious allegations which were made against her by the applicant, but did not allow that frustration to distract her from giving a forthright explanation of what she had done and her reasons for doing so.
The cross‑examination of the second respondent left me with the firm impression that the second respondent was motivated by securing the best outcome for the applicant's children and focussed on the proper discharge of her responsibilities, as an officer of the Department, to protect the children from harm. I am satisfied that the second respondent was an honest and reliable witness who acted in good faith to discharge her responsibilities under the CCS Act as she understood those responsibilities. I find nothing in her evidence, or any of the other evidence beyond the applicant's bare allegations, to suggest that the second respondent acted with malice, fraud or on a false pretext. I reject the applicant's allegations that the second respondent acted in that manner.
I therefore find the second respondent to be a reliable witness who has endeavoured to ensure that her evidence places accurate information before the court, and made a bona fide attempt to exercise her statutory powers in a manner which served the best interests of the applicant's children.

Other evidence

The applicant tendered a document published by the Department of Health in 2004 called Guidelines for responding to child abuse, neglect and impact of family and domestic violence. The applicant put the document to the second respondent, but the second respondent was not familiar with the document. This is not surprising, as the document was prepared by a Department in which the second respondent did not work, and on its face is a document directed to health workers and designed to provide guidance to those workers as to the appropriate response to relevant allegations.
The applicant also sought to tender audio recordings which she had made of conversations with the departmental officers on 2 and 3 March 2015, an audio recording of a contact visit between the applicant and the children on 4 March 2015 and a series of photographs of the children. In the end, the respondents did not object to the admissibility of this evidence, and so I admit the material as evidence in this application.
The respondents did object to the admission of audio recordings of events which occurred on 5 March 2015 on relevance grounds. I uphold that objection as I can see no basis that the material sought to be admitted has any significance for any of the issues I have to determine in this judicial review application.

Factual background

As I have noted, the applicant has a long and relatively complicated history of interaction with the Department. Some of that history forms a relevant part of the material which is relevant to assessing the reasonableness of the impugned decisions.

April 2014 Decision of the Children's Court

The applicant's children were previously taken into provisional protection and care on 7 August 2013. The first respondent also made an application for a protection (time limited) order for a period of two years at about that time. The first respondent's application was dismissed by the Children's Court on 3 April 2014, and the children were returned to the care of the applicant on the following day.
The findings made by the magistrate on 3 April 2014 formed part of the background against which the events the subject of this application occurred. It is appropriate, therefore, to summarise the magistrate's central findings.
The magistrate found that the applicant suffered from a psychiatric illness, described in reports as adjustment disorder, being mood disorder, with depressive symptoms. He found that the applicant had a history of depression and of suicidal threats (ts 3). The magistrate was critical of the applicant's evidence before him, and found that she was a person who cannot be believed.
The magistrate found that Mr H was the father of the children, was then aged 50 years and was a British national. The applicant was 43 or 44, was born in Beijing, was educated to a high standard and had worked as a television presenter and journalist in China (ts 5).
It is implicit in the magistrate's reasons that he accepted that the applicant, Mr H and the children were married and living in Beijing in 2011. The magistrate found that Mr H made a decision to come to Australia at the end of 2011 to get away from the applicant, and was granted a cl 457 visa for work purposes which would expire on 10 October 2015. After arriving in Australia, on 5 December 2011, Mr H filed a form with the Department of Immigration indicating that his marriage to the applicant had broken down. However, because the notification was not acted on immediately, the applicant and the children were able to travel to Australia on 23 December 2011 (ts 6 ‑ 7).
The magistrate found that the applicant was in contact with the Department within a day of her arrival in Australia. She stayed the first night in a motel before being accommodated at a women's refuge where she remained until 4 October 2012. He found that the children were in school by early 2012 and, by March 2012, the applicant had established herself in volunteer work (ts 8).
The magistrate found that, in July 2012, the applicant approached the Department and asked them to look after the children for three weeks while she did some work experience. She also asked for help in getting out of the refuge into different accommodation (ts 9).
The magistrate found that the applicant and Mr H were divorced in the United Kingdom in August 2012 (ts 9).
The magistrate found that, at 5.09 pm on 29 September 2012, the applicant presented at the Perth police station to surrender the children, wanting them taken into care. She caused a commotion and had the children with her (ts 10). Two days later she presented to the police again to hand the children over (ts 11). The magistrate found that this third attempt to leave the children with someone centred on the applicant trying to get Mr H to accept responsibility for looking after the children (ts 12). The magistrate found that the applicant's behaviour in taking the children to the police station to surrender them caused the children emotional harm (ts 14).
The magistrate found that, at about this time, the applicant was subject to a number of stressors. She was in conflict with Mr H about the provision of financial support and frustrated by her inability to get a job and her conflict with the organisation which operated the women's refuge at which she was staying (ts 10 ‑ 11). Also at this time, the applicant spent a long time inside her unit with the children locked outside while she worked on her computer preparing a submission to the Department of Immigration as to why her visa should not be cancelled (ts 13).
The magistrate found that, on 4 October 2012, the applicant voluntarily gave the children into the care of Mr H. She also had contact with the Department of Immigration on that day. When she returned to the women's refuge she was said to be distraught, emotional, hysterical and suicidal, and was admitted to Royal Perth Hospital (ts 14). On 4 October 2012, the applicant alleged that Mr H had sexually abused the children. The magistrate found that Mr H had never sexually abused the children (ts 15 ‑ 16).
The magistrate found that, on 25 October 2012, Mr H applied for 'live with' orders out of the Family Court of Western Australia (Family Court). The magistrate found that he did this to make sure the children did not go back to the applicant in her state of having a mental illness (ts 16).
The magistrate found that the applicant was discharged from Royal Perth Hospital on 30 October 2012. She stayed in two youth hostels before getting a unit in Stirling Street, Perth on 21 November 2012. She obtained orders for contact with her children on 9 November 2012 (ts 16).
The magistrate found that the applicant lived with a Mr K from January ‑ March 2013.
The magistrate found that, in April 2013, the Family Court made 'live with' orders in respect of the applicant by consent (ts 17). He also found that, on 19 April 2013, the applicant went to the Department again to leave R because she could only take care of one child at a time. At this time the applicant was stressed and emotional, and R was present to see this (ts 17 ‑ 18).

The magistrate found that, on 10 May 2013, the applicant was found with the children on the street near where Mr H then lived. She was upset, crying, agitated and speaking quickly. She had been throwing rocks at doors and windows in order to gain attention. The applicant said that she was overwhelmed by the children, could not handle responsibility and could not provide the basic necessities. She was given a '72 hour police order' (ts 18 ‑ 19).
The magistrate found that, on 14 May 2013, the applicant was again at the Department's office, and said she wanted to leave the children there. She said that she was concerned that Mr H would not provide winter clothing so she no longer wanted to care for the children. The applicant was distressed and abusive and the children were distressed and crying. The magistrate found that the applicant again caused emotional harm to the children by behaving in the manner which she did. The applicant refused to leave until Mr H came and took the children away, which he did after the Department officers agreed (ts 19).
The magistrate found that, on 24 June 2013, there was an access arrangement by email between the applicant and Mr H in which the days and times at which the applicant and Mr H would pick the children up from school was mentioned (ts 19 ‑ 20). On 17 July 2013, Mr H got married again in the Philippines. On 30 July 2013, the applicant obtained more secure and acceptable accommodation at an address in Leederville (ts 20).
The magistrate found that, on 2 August 2013, the children's school rang the Department because the applicant had not come to pick up the children. The applicant was of the view that Mr H should have picked the children up pursuant to their arrangement, and had to be persuaded to collect the children (ts 20).
The magistrate found that, on 7 August 2013, the applicant did not go to get the children after school because it was Mr H's turn. The Department made arrangements for the applicant to collect the children. The applicant was emotional, upset and erratic. The applicant refused to say where she was living, said that she had no food and clothing and began to walk away with the children in the rain. At this time the decision was made to take the children into care. The magistrate found that taking the children into care on 7 August 2013 was the proper thing to do and was justified by the evidence (ts 21 ‑ 22).
The magistrate rejected the applicant's allegations that the children had been 'kidnapped', and found that it was impossible for the Department to work with the applicant (ts 21 ‑ 23). The magistrate said that the first respondent filed two applications for protection orders on 12 August 2013.
The magistrate found that the children were placed in foster care for a short period of time and were then placed with Mr H. In October 2013 the children were referred to counselling. The counsellor noted that R was behaving aggressively, and that the probable cause of his behaviour was 'environmental trauma' and repeating the adult behaviour he had seen in the applicant (ts 23).
The magistrate found that, in February 2014, the applicant's contact with R was suspended because of the applicant's repeated aggression towards departmental workers and the applicant grabbing R by the shoulders and shouting at him (ts 24).
The magistrate found that, in February 2014, Mr H was planning on leaving Australia and the applicant did her best to prevent him from doing so. On 30 March 2014, Mr H's cl 457 visa was cancelled. By that time he had left Australia. The applicant had 'got a week out of' the Department of Immigration (ts 24).
After referring to character evidence adduced by the applicant, the magistrate said:
[W]hen things are going all right for [the applicant] and she's not being challenged, she's not being pushed, she's not being told she can't do something, there would be little doubt that she doesn't cause emotional harm to the children, but when things pile up she does (ts 25).
The magistrate found each and every allegation of improper conduct made by the applicant to be false (ts 25). The magistrate also found that the children had suffered emotional abuse by the applicant exposing them to the behaviour to which he had referred (ts 26). He said that the focus should be on whether the applicant in the future is going to protect the children from emotional abuse (ts 24). The magistrate found that the applicant had the capacity to protect the children from harm and had a proper relationship with the children (ts 26).
The magistrate then said:
There are a number of factors in this case which lead me to the conclusion that [the applicant] won't do it again. There are a number of factors which lead me to the conclusion that the children will not in the future be emotionally harmed by [the applicant] (ts 26).
The factors identified by the magistrate were that Mr H had left Australia, that the applicant had an acceptable place to live and that the applicant had a paying job (ts 26 ‑ 27). The magistrate concluded his reasons in the following manner:
It's unfortunate that [the applicant] has had such a hostile relationship with [the Department] … because it's unfortunate for those who have had to suffer her allegations and her attacks and aggression because they don't deserve it and they did not do anything wrong.
But her personality, unhelpful as it might be, can't be held against her when one balances the clear terminology of the [CCS] Act, the importance of continuity and stability of the child's living arrangements and the likely separation from the child's parents. The only parent we're concerned with is [the applicant]. There is no bonding with any foster carer. The only future they've got is with [the applicant]. So for all of those reasons, I dismiss the applications (ts 27).
It can be seen from the above summary that the magistrate accepted that the children had suffered emotional abuse caused by the applicant's behaviour. The magistrate accepted that the decision to take the children into provisional protection and care on 7 August 2013 was justified. However, he concluded that the applicant would not, in the future, cause emotional harm to the children. Because the magistrate reached that conclusion it was unnecessary for him to consider whether the extent of the emotional abuse to which the children were exposed justified their removal from the applicant's care.

Events from April 2014 to February 2015

In her affidavit filed in the Children's Court, the second respondent identified the following events which occurred between April 2014 and February 2015, which I accept occurred in the manner described.
The children were returned to the applicant's care on 4 April 2014.
On 19 September 2014, the Department received an email from Mirrabooka Family Support Network advising that the applicant had been referred to their service for financial issues and made unsubstantiated allegations of sexual abuse by Mr H. The Department became concerned that she was not able to provide financially for the children.
On 10 October 2014, the applicant wrote to the Department alleging that she had experienced family violence and that the children were at risk because she had no source of income to buy food.
On 31 October 2014, the applicant attended a meeting with the second respondent to discuss the applicant's then current financial circumstances and risk of homelessness. At that time the applicant alleged that the children had been physically assaulted by her ex‑partner who had hit them with a shovel.
On 13 November 2014, the second respondent contacted the children's primary school and was advised that the children had adequate food and had never complained of being hungry or reported not having sufficient food to eat.
On 17 November 2014, the applicant contacted Crisis Care (the Department's after‑hours service) in a very distressed, stressed and anxious state, reporting financial difficulty due to ongoing immigration issues and no income. Financial assistance was provided to 'diffuse [the applicant's] sense of crisis'.
On 27 November 2014, a departmental 'Safety and Wellbeing Assessment' concluded that there was no evidence to indicate that the children were at risk of neglect due to the applicant's financial circumstances.
On 1 January 2015, the applicant contacted Crisis Care in a distressed and anxious state, crying uncontrollably for 50 minutes. She referred to issues in relation to her financial situation, accommodation and her inability to provide food for the children. A child could be heard sobbing in the background, and the applicant put A on the phone on two occasions to explain what had occurred, despite the Crisis Care worker telling her that this was inappropriate.
On 19 January 2015, an officer of the Department of Immigration advised the Department that the applicant was sending an increased amount of 'strange' emails raising concerns that the applicant's mental health may be deteriorating.
Also on 19 January 2015, the second respondent commenced as case manager for the children, and familiarised herself with the history of the applicant's and children's interaction with the Department from the Department's files and case notes.
On 20 January 2015, the second respondent and another officer of the Department attended the applicant's home, and attempted to engage her in a discussion about her impending eviction. During this visit the applicant became agitated and was yelling and shouting at the departmental officers despite the children being in the room. At this time the applicant expressed the view that it was the Department's responsibility to provide a house for her children and that she intended to camp in front of Parliament House until a solution was found.
The applicant deposed that the second respondent racially abused the applicant at the meeting on 20 January 2015. I do not accept that evidence. It was denied by the second respondent in her evidence. The second respondent accepted that, at this meeting, she had asked the applicant whether she had considered returning to China given that she had no capacity to work in Australia and no source of family support in Australia. I find that this comment was motivated by a desire to explore options for improving the family's difficult circumstances, arising from the applicant's migration status, in which the family effectively had no source of income in Australia. It may be that the applicant, because of her distressed state at the time and the fact that she sometimes requires assistance understanding what is said to her in English, misunderstood or misinterpreted what the second respondent said on this occasion. However, I do not accept that the second respondent said anything which could objectively be characterised as racial abuse.
On 29 January 2015, the applicant attended a meeting at the Department's Mirrabooka office for a 'Signs of Safety' meeting. The second respondent attended the meeting, and deposed that the purpose of the meeting was to discuss concerns regarding the applicant's impending homelessness, the impact of the applicant's mental health on her parenting capacity and to develop a clear plan to ensure the children were not placed at risk of neglect, homelessness or emotional harm.
The assessment and planning form for that meeting was tendered in evidence. The assessment form lists a number of matters about which the Department was concerned and identified what was working well and what needed to happen. The oral evidence of the second respondent indicated that the principal focus of the Department's concerns, at that time, was the risk of homelessness posed by the applicant's pending eviction from her accommodation. However, a number of positive matters were also noted in the form.
The assessment form noted that the Department of Immigration was likely to grant the applicant a permanent residency visa which would entitle her to access certain Centrelink payments. The form noted that the Red Cross were working intensively to support the applicant. The form noted that the applicant had been granted a visa to work. The forms noted that, in the previous year, it was reported that the children had settled well in school with no concerns being noted regarding their presentation or behaviour; were able to make friends well; were engaging positively with their peers; were clean and had appropriate food.
The meeting on 29 January 2015 was disrupted when the children became unsettled. It is unnecessary for me to make any findings about what actually caused the children to become unsettled. The second respondent received a report from another departmental worker that, at some point, the children, who were in another room, were able to hear the applicant shouting and R became negatively impacted by seeing and hearing his mother and was unable to settle down despite attempts to distract him.
There was a record of the applicant having contacted the Department on 9 February 2015 in an abusive state demanding that the Department provide financial assistance to purchase medicine for A, who had a fever.
The second respondent was concerned about the children's safety and welfare in the home based on reports she had received and her own contact with the applicant and the children. She decided to arrange an interview with the children. She decided that she should exercise the power contained in s 33(1) of the CCS Act to interview the children at their school without informing the applicant or Mr H. She obtained approval to do this from her District Director on 10 February 2015. The second respondent attempted to schedule interviews on a number of occasions, but was unable to do so immediately as the children had moved school.
On 17 February 2015, a second 'Signs of Safety' meeting took place at the Department's Mirrabooka office. The assessment form noted that Red Cross had been advised that the applicant was to be given free accommodation via a member of the Victory Life church until her visa application was finalised and she found other accommodation. It was noted that, while the house was old and scheduled for demolition, the applicant was just pleased to have a roof over her head.
On 24 February 2015, the second respondent arranged to speak to the children at their school on 3 March 2015.
On 27 February 2015, the Department of Immigration advised the Department that the applicant had been granted permanent Australian residency.

Events of 1 ‑ 2 March 2015

On Sunday 1 March 2015, a police officer contacted Crisis Care and reported that the applicant had abandoned the children on the side of the road in Brentwood, returning 5 ‑ 10 minutes later to collect them. The police had checked the registration of the car used to collect the children and believed it was the applicant's vehicle. The telephone conversation was not recorded, but a departmental file note of the report was made.
The applicant's evidence was that, on that morning, the children were fighting over a toy in the car. The applicant said that she was concerned about road safety issues, and stopped the car to give the children a 'timeout' under a big tree in a residential area to calm them down. The applicant said that she was supervising the children at all times from her car. She said that, at one point, she needed to make a U‑turn as she was blocking traffic. I note that the location where the applicant says the 'timeout' occurred is close to a freeway entrance. The applicant said that a couple passing were 'racially interrupting the timeout', and asked a woman passing by to call the police. After 5 ‑ 10 minutes the children were returned to the applicant's car after they agreed to calm down and not fight in the car. Police eventually arrived and spoke to the applicant, and left without expressing any concern about the children's wellbeing. The applicant said that she took the children to a beach and then spent a wonderful afternoon and evening engaged in church activities.
The applicant's account of what actually occurred on 1 March 2015 was not challenged by way of cross‑examination or other evidence and, in those circumstances, I proceed on the basis that the applicant's account of what actually happened on 1 March 2015 is a generally accurate account. In the absence of corroboration, I do not accept that the couple's intervention was racially motivated, and I am not in a position to make any finding as to the objective risk posed to the children by the traffic situation. Nor is it necessary for me to do so for the purposes of resolving this judicial review application.
On Monday 2 March 2015, which was a public holiday, the applicant contacted Crisis Care stating that the house provided by the Victory Life church was overrun by bugs. The evidence of the second respondent, which I infer is based on departmental records, indicates that during this first conversation the applicant began to scream at the departmental officer. The applicant's recording of what I infer to be this call was received in evidence. Although the applicant is clearly upset about bugs in the house, I do not consider that it can be said that she was screaming at the departmental officer. I do not accept that the applicant was actually screaming on this occasion, although I do accept that the second respondent had received a report to that effect which she had no reason to doubt.
The departmental officer called the applicant back to discuss a number of issues, and advised the applicant to stop discussing these issues in front of the children as it was upsetting them. The applicant then became distressed and started to cry. Because the departmental officer was concerned that the applicant's behaviour was negatively impacting the children, and to defuse the situation, she arranged for the applicant and the children to be accommodated for one night in a hotel.

Interview of children on 3 March 2015

The second respondent returned to work after the long weekend on Tuesday, 3 March 2015. She observed the Department's file notes of the applicant's contact with Crisis Care over the previous two days.
The applicant deposed that the second respondent contacted her by telephone at 9.22 am, and they spoke until 9.40 am. A recording of this conversation was tendered in evidence by the applicant. I note that, during this conversation, the applicant was distressed and adamant that the 'bugs', which were described in the conversation as caterpillars but which appear from photographs to be millipedes, made the house unliveable. The applicant was angry, shouting and somewhat irrational during this call. She indicated that she had no plans for where the family would stay that night but was adamant that they would not return to the house. The applicant appeared to regard it as the second respondent's responsibility, rather than her own, to provide safe accommodation for the children.
The second respondent then attended the children's school for the interviews which she had arranged on 24 February 2015. The second respondent attended the school with Ms Yu, another child protection worker in the Department.
Ms Yu and the second respondent attended each interview, so one could act as scribe while the other asked questions. The second respondent gave evidence that it is the Department's practice for the scribe to write as accurately as possible and for these notes to be typed up later, as 'scribed', without any additional recollections of the interview to be added to the typed version. The interviews are not recorded through any other medium. The second respondent indicated that the scribe's record is not a complete transcript of the interview with a child.
The typewritten records of the interviews with the children were produced in evidence. The second respondent's evidence is that, while they do not record the full words of the children's answers, the records accurately summarise the interviews to the best of her recollection.

The children were interviewed separately. The interviews commenced at approximately 10.30 am and were completed at approximately 11.30 am. After the interviews were completed, the children returned to their classes.
The applicant alleged that these records were a fabrication and the children did not say the things alleged. She criticised the second respondent for not making a video or audio recording of the interview. She questioned why Ms Yu was not called to give evidence. She said that what the children said was inconsistent with the objective facts, such as the layout of the house indicated in photographs tendered in evidence, which meant that it was unlikely that the children would have said what was recorded in the notes.
Notwithstanding these various criticisms, I am satisfied that the notes provide an accurate summary of what was said by the children during their interviews. From the court's perspective, the fact‑finding task would be easier if an audio or visual record were available. However, I am satisfied that the note‑taking process adopted by the Department's officers gives a reasonable record of what occurred. In all the circumstances I do not draw an inference, from the failure to call Ms Yu, that her evidence would not have assisted the respondents. As she was the principal note‑taker, it would be expected that she would affirm the accuracy of the notes. I do not doubt the second respondent's evidence that the notes, while not a full verbatim account of the interview, form a reasonably accurate record of what was said.
In this judicial review application it is necessary for me to make findings about what the children said in these interviews, as the respondents rely on what was said as providing reasonable grounds for the second respondent's suspicion that there was an immediate and substantial risk to the children's wellbeing. It is not necessary for the purposes of dealing with this application for judicial review for me to make any finding as to the accuracy of what the children said to the second respondent and Ms Yu during the interviews on 3 March 2015.

Interview with A

In her interview, A indicated that she slept somewhere else yesterday because of the bugs in the house, and the applicant 'called childcare and asked them to look'. A said that the applicant was 'screaming, she was shouting and she was talking very loud and had a grumpy face'. A told the applicant to stop and started to scream. A said she was shouting 'stop' and, when the applicant did not stop, was angry, disappointed because the applicant would not listen and sort of worried.
A said that this happened 'lots' and occurred every day of the week. A would hide because she was scared the applicant might smack her as well. A said that the applicant did not smack her often, but would use a thick rope off her surfboard to hit her on the bottom '5 or 10 times if we've been very bad we get 20, not bad. If she's shouting 10 smacks and sometimes on the leg'.
A said that this hurt but did not leave a mark. A said that she had hidden the rope, and the applicant now uses her hands and a broom, which had broken when the applicant smacked R on the bottom. A said she felt scared when this happened.
A described being told by the applicant to sleep out the front of their old house on two occasions, because she was being noisy. She said she was scared because there was a big park outside and snakes in the tree.
When asked about being left on the side of the road on Friday or the weekend, A said 'I got dropped off on the side of the highway because I won't pack up the things in the house'.
A described the applicant coming back to pick them up, and taking them to the river to calm down. A said that it was her idea to go to the river to calm down, and that she needed ideas to calm the applicant down 'but she doesn't always do it'. A said that she was worried that 'she might drop us off again'. She indicated that it had happened in the past.
When asked about how she felt about the applicant finding out about A speaking to the departmental officers, A responded 'scared she'll say something to me then I'll be in big trouble, I'll be put on the highway again'.
A said that she was not worried about anything else and, apart from shouting and yelling, the applicant did not do anything else which made her worried or scared. She said that she had enough food but would like to change the house they were living in.

Interview with R

R described the bugs in the house and staying in a hotel the previous night. He did not know how the applicant organised for them to stay in the hotel. When asked about being left on the side of the road R said 'my sister was being naughty and my Mum said drop us at the side of the road then she took us back'. When asked how this made him feel, R responded 'not happy'.
R described the applicant smacking him with a rope of a surfboard or her hand 10 times, which did not leave a bruise or mark. He described the applicant shouting and yelling at A when 'on timeout'. He denied ever feeling worried or frightened.
R described the 'old' and 'creepy' house they were living in, his mum preparing dinner and going to the river and parks. When asked 'what happens when mum is grumpy', R responded that she 'smacks [A] cause she's been naughty'. He described seeing the applicant smacking A on the bottom with a plastic broom or rake 10 times.

Second respondent's assessment

The second respondent described the view she formed after the children's interviews at pars 24 and 25 of her affidavit. I accept that this is an accurate account of the views she formed at that time. The second respondent said:
Based on the disclosures made by each of the Children in the interviews, I formed the view that the Children had experienced physical and emotional harm. I considered there was a substantial risk to the Children's wellbeing, in particular their emotional and physical safety, from the continued placement of the Children with the Applicant on the basis of the following matters:
(a)The Magistrate had found on 30 [sic] April 2014 that he was of the view that the Children had been harmed emotionally, agreeing with the Department's assessment of the matter at that time;
(b)In their interviews both Children separately disclosed consistent accounts of physical harm in the form of being hit 10 ‑ 20 times depending on how naughty they had been;
(c)In their interviews both Children disclosed being hit with instruments such as a surfboard cord and that the hitting hurt. I also considered there was a substantial risk of harm due to the small stature of the children;
(d)In her interview [A] disclosed she was worried the Applicant would abandon them;
(e)[A] also disclosed that the Applicant had left them on the side of the road and they were worried she would not come back;
(f)I believed the Children were being truthful, as they were not aware we were attending the school prior to being interviewed, and did not have the opportunity to talk to each other before the interviews.
I considered the risk to the Children's wellbeing was immediate on the basis of the following matters:
(a)The above disclosures, coupled with the history in 2014, indicated to me that the harm to the Children was cumulative and ongoing and there was no reason for me to think that they would cease;
(b)[A] disclosed that she was worried the Applicant would abandon them if the Applicant found out they had been interviewed by the Department that day;
(c)In my experience, children often tell their parents when they return home from school that they have been interviewed by the Department;
(d)I was concerned, based on the Applicant's past history of in particular her response to Departmental intervention, if the Children returned home after school and the Applicant was, or became, aware of the interviews, the Children would be at risk of physical and emotional harm;
(e)If I were to inform the Applicant, in advance of taking them into provisional protection and care, that the Children had been interviewed by the Department and were being taken into provisional protection care, I considered there was a risk that the Applicant would collect the Children from school. This is because based on my previous contact with the Applicant, I considered she would disagree with the decision to take the Children and might attempt to collect the Children from the school prior to our attendance as she lives within walking distance from the school.
The second respondent said she returned to her office at about 12.00 pm on 3 March 2015, and consulted with her colleagues as required by departmental policy before acting under s 37 of the CCS Act. She said, and I accept, that:
I considered alternatives to exercising my section 37 powers but I did not think there was any alternatives [sic]. Having examined the Department's files, I understood that there was no other family here in Australia and the father lived overseas. The support networks identified by the Applicant were community agencies who I considered could not adequately care for the Children. The Applicant did not appear to have any insight into her behaviours which would escalate the Children's behaviours. At that time, I did not think there was a safety plan that we could develop that would protect the the [sic] Children from further risk if they remained in her care.
The second respondent received her superior's authority to take action under s 37 of the CCS Act at 1.10 pm, and instructed two officers of the Department to pick up the children from school. She was informed that the officers were leaving for the school at around 2.00 pm. I infer that those officers took the children into the care of the Department that afternoon.

Subsequent events

At about 2.45 pm on 3 March 2015 the second respondent telephoned the applicant and informed her that the children had been taken into provisional protection and care. A meeting was arranged between the applicant, second respondent and others at the Department's offices that afternoon. This evidence was confirmed by a recording of the telephone conversation tendered by the applicant. It is unnecessary for me to go into detail of what was discussed at the meeting. I note that the applicant denied smacking or hitting her children, screaming or shouting or making A sleep at the front of the house. She gave an account of the incident when the children were left on the roadside which was generally consistent with the account I have described above.
The second respondent then attended the departmental facility where the children were being kept. When being informed that they were entering the Department's care, the children became very agitated and violent, assaulting workers and locking themselves in a toilet cubicle. The children were then placed with a general foster carer.
A decision was subsequently made to separate the children in their placement due to 'escalating behaviours'. R remained in general foster care, while A was placed in a 'Tier 2 placement', which the second respondent describes as:
a therapeutic based placement which allows for supervision of Children exhibiting trauma related or really challenging behaviours. It is staffed by shift workers trained in child protection.
The Department facilitated contact between the children on 4 and 27 March 2015. The applicant has declined an invitation to meet with the second respondent to arrange contact with the children.

Proceedings in the Children's Court

On 5 March 2015, the first respondent filed applications in the Children's Court in relation to the children. The first respondent sought two orders in respect of each of the children. The first was a protection order (time limited) for a period of 2 years. The second was an interim order that, pursuant to s 133(2)(b) of the Act, the children remain in provisional protection and care.
Also on 5 March 2015, the first respondent filed an affidavit of the second respondent in the Children's Court in support of the applications. The affidavit described the applicant's and children's history with the Department and the events leading to the application. It annexed various documents including the records of the interviews with the children.
The second respondent sent an email to Mr H, the children's father, on 5 March 2015 and spoke to him by telephone that day. She informed him of the hearing in the Children's Court, and emailed him copies of the applications and her affidavit.
The first respondent's applications came before Magistrate Hogan in the Children's Court on 10 March 2015. The applicant appeared in person at that hearing. Mr H, who now lives in the Philippines, did not appear at the hearing, due to issues with the telephone link.
The second respondent has indicated that the applicant also filed an affidavit in the Children's Court, although a copy of that affidavit has not been produced to me.
The magistrate asked whether the applicant had any objections to him hearing the case, seeing that he had heard the last one. The applicant indicated that she did not have any objection, and was pleased because he was familiar with the case.
Various matters were discussed in the court. The applicant indicated that she was applying for an order to release the children into her care (ts 8).
The magistrate listed the first respondent's application for a protection order (time limited) for hearing over 10 days commencing on 7 December 2015. He also indicated that a hearing would be held on 24 April 2015 to consider the children's placement.
The following exchange occurred during the course of the hearing:
His Honour: They're in section 37, are they? Yes. They are.
[YPW]: Your Honour ---
His Honour: Declaration ---
[YPW]: This is vexatious procedures.
His Honour: Declaration 133(2)(g). What's the date today? 10 March.
There was no other explanation of the 'declaration', or the reasons for making it, during the course of the hearing.
An order in the following terms, and headed with a reference to the CCS Act, was signed by the magistrate and sealed by the court:
On the application of Department for Child Protection and Family Support dated 5 March 2015
IT IS HEREBY DECLARED pursuant to s 133(2)(g) THAT:
Until further order of the Court the child is in provisional protection and care. (original emphasis)

Application for judicial review

Procedural matters

On 17 March 2015, the applicant filed an application for judicial review in this court, seeking review of the second respondent's decision of 3 March 2015 to take the children into provisional protection and care.
The application for judicial review was listed before me for directions on 25 March 2015. At that time I granted leave to the applicant to amend the application to seek judicial review of the order made by the Children's Court on 10 March 2015. I made programming orders for a hearing on 1 April 2015.
On 26 March 2015 the applicant filed an amended application for judicial review, which included the amendments for which leave had been granted as well as other amendments. At the commencement of the hearing on 1 April 2015 I ordered that the amended application stand as the application in these proceedings.

Intervention by Attorney General

At the commencement of the hearing on 1 April 2015, the Attorney General for Western Australia sought leave to intervene in the proceedings. The Attorney General principally sought to advance submissions on the proper construction of s 133(2)(g) of the CCS Act which would not be advanced by any other party. Although this was the principal purpose of the intervention, the Attorney General also sought to be heard on the application as it pertained generally to the declarations. I granted leave to intervene and indicated I would provide my reasons for that decision with my reasons for determining the judicial review application. These are my reasons for granting the Attorney General leave to intervene.
It is established that the court may, in the exercise of its discretion, grant leave to the Attorney General to intervene in proceedings in which the decision of the court may have a bearing upon the legislative or executive power of the State or otherwise indirectly affects the interests of the State. However, such an indirect interest in the proceedings enlivens no absolute right to intervene. Generally, the discretion will only be exercised where the court is satisfied that the parties may not fully present submissions on a particular issue which the applicant for intervention proposes to address, being submissions which the court should have to assist it to reach the correct determination.[25]
[25] R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 183; Levy v Victoria (1997) 189 CLR 579, 602 ‑ 603.
In the present case the respondents disclaimed any attempt to support the declarations made by the Children's Court by reference to s 133(2)(g) of the CCS Act. The applicant contended that the paragraph did not authorise the orders. In those circumstances it seemed appropriate to me to grant leave to intervene so that the court had the advantage of submissions supporting the proposition that the declarations were authorised by s 133(2)(g) of the CCS Act.

Grounds on which judicial review is sought

The grounds of the application for judicial review of the second respondent's decision of 3 March 2015 are rather discursive which, given the fact that the applicant is self‑represented, is quite understandable. My review of those grounds, which it is not useful to reproduce in full here, identified three substantive matters raised by the applicant which may go to impugn the validity of the second respondent's decision. Those grounds are, in my brief summary:
1.The second respondent had abused her power under s 37 of the CCS Act by exercising the power maliciously, in bad faith and for an improper purpose.
2.There were no reasonable grounds for suspecting that there was an immediate and substantial risk to the children's wellbeing or for removing the children from the applicant's care.
3.The second respondent failed to apply, or have regard to, certain aspects of s 9 of the CCS Act.
The declarations made by the Children's Court on 10 March 2015 were challenged on the ground that it was not open to the court to make the orders in the circumstances, or to be satisfied of the matter referred to in s 46 of the CCS Act.
Before turning to consider these grounds, I will deal with the proper construction of s 37(2) of the CS Act, which is of central importance to the disposition of this appeal.

Proper construction of s 37(2) of the CCS Act

Section 37(2) of the CCS Act confers a discretionary power subject to a condition to the existence of the discretion. The power is a power to take a child into provisional protection and care.

Jurisdictional fact

The power does not arise unless the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing. That condition to the existence of the officer's power may be referred to as a 'jurisdictional fact', in the following sense explained by French CJ in Plaintiff M70/2011 v Minister for Immigration:[26]
The term 'jurisdictional fact' applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision‑maker to exercise a discretion. The criterion may be 'a complex of elements'. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision‑maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non‑existence of which may be reviewed by a court. The decision‑maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision‑maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision‑maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
[26] Plaintiff M70/2011 v Minister for Immigration [2011] HCA 32; (2011) 244 CLR 144 [57] (citations omitted). As to jurisdictional facts relating to state of mind, see also Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [130] ‑ [137].

The risk which the second respondent perceived was a risk to the children's 'emotional and physical safety'. Such a risk is clearly a risk to the children's 'wellbeing' as defined in the CCS Act.
At the time when the relevant state of mind arose, the risk to the welfare of the children was properly characterised as immediate. Once the second respondent had followed the departmental protocol, it was the afternoon and the children were about to be collected from school by the applicant. She concluded that the children had actually suffered physical and emotional harm in the immediate past, and would be exposed again when collected from school. She could reasonably take the view that there was no time to secure a warrant from a magistrate or judge before the children were collected from school. The second respondent's state of mind related to a risk that was present and not merely a concern which might arise at some time in the future.

Reasonable grounds

In my view the grounds referred to at pars 24 and 25 of the second respondent's affidavit would be sufficient to induce such a suspicion in a reasonable person that there was an immediate and substantial risk to the wellbeing of the applicant's children.
Both children had made disclosures about the applicant engaging in hysterical behaviour and repeatedly hitting them with objects, in what would clearly amount to excessive corporal punishment. The fact that the disclosures were consistent and made independently, without the children having any opportunity to collaborate, provided grounds for treating the disclosures as reliable. It was, in my view, reasonable to infer that this behaviour was likely to harm the children's emotional development and psychological health. The use of objects to strike the children 10 ‑ 20 times also had a clear potential to compromise their physical health and safety in the future, even though neither child reported the blows leaving marks and no physical evidence of the events was visible to the second respondent.
Further, it was relevant that the applicant's hysterical behaviour, and its effect of upsetting the children, had been observed by officers of the Department, including the second respondent. Those observations by departmental officers tended to corroborate the children's accounts of upsetting behaviour by the applicant.
When the children were taken into provisional protection and care, the second respondent had reports from both police and the two children that the children had been left by the applicant on the side of the road. Both children were upset by this, and A in particular was concerned that the children would be abandoned again. The behaviour occurred against the background of the repeated attempts at abandonment described by the magistrate in his reasons given on 3 April 2014. The fear of abandonment could be seen to be detrimental to the emotional development and psychological health of the children. The accounts given to the second respondent also gave rise to a reasonable concern about the physical safety of the applicant's children.
The history described in the magistrate's reasons and indicated by past contact between the applicant and the Department indicated that the intrusion of the Department into the applicant's life was likely to trigger behaviour which was upsetting for the children. Given the history of interaction between the applicant and the Department known to the second respondent, it was, in my view, reasonable for the second respondent to be concerned about the applicant's reaction when she discovered that the children had been interviewed by Department officers and the harmful effect which that reaction might have on the children.
The applicant was critical of the second respondent for not undertaking further investigations into the matters raised by the children before taking action. However, the question posed by s 37(2) of the Act is whether a reasonable person with the information available to the second respondent would have been suspicious as to the existence of the relevant risk. As I have noted, that state of suspicion may be reached on the basis of information received by others. Further, each of the grounds relied on by the second respondent were supported by more than one piece of information available to her, and was not contradicted by any other information which she had in her possession.
The applicant also submitted that the second respondent was not in a position to reach any conclusion that the children had been emotionally or psychologically harmed as she did not have any qualifications as a psychologist or psychiatrist. It is true that, while she is an experienced child protection worker, the second respondent does not possess those qualifications. However, the CCS Act requires the suspicion to which it refers to be formed by an 'officer' and does not require the officer to be a qualified psychologist or psychiatrist. Further, the Act does not require that the officer make a diagnosis that emotional or psychological harm has occurred. Rather, it is sufficient if the officer suspect that there is a risk to the emotional or psychological development and health of the relevant child. The hypothetical reasonable person should not be regarded as precluded from forming such a view without a medical qualification.

Discretion

I turn to consider whether the second respondent reasonably exercised her discretion to take the children into provisional protection and care.
In considering where the best interests of the children could reasonably be seen to lie, it is relevant to note some of the circumstances known to the second respondent which tended to suggest that it would be in the best interests of the children to remain in the care of their mother.
The applicant had faced considerable adversity since her arrival in Australia in 2011. She arrived without any prior association with anyone in Perth other than Mr H, who had come to Perth in an attempt to escape from her. She had no financial resources, and her visa did not initially allow her to work. She was quickly in dispute with the Department of Immigration and had a tenuous migration status. As well as not being able to earn an income, she was denied access to Centrelink benefits which might otherwise have supported the family. The applicant was in a country and culture which was largely foreign to her. She was faced with the task of raising two young children as a single mother.
In the face of this adversity, the applicant has managed to ensure that the children are provided with accommodation. Although the applicant complained on more than one occasion that she could not afford to feed the children, the departmental assessments had found that the children were well fed. The children have been well clothed and always attended schools at which they were reported to be settled. The applicant has engaged herself and her children with the community, participated in church and community activities and obtained assistance from community organisations. In this manner the information available to the second respondent indicated that the applicant was doing much to promote the wellbeing of her children in very difficult circumstances.
The central question which had to be addressed was whether the risk of harm which the second responded had identified meant that it was in the best interests of the children to take them out of their mother's care despite the positive aspects of the parent/child relationship which would be harmed as a result of separation.
As I have noted, the considerations identified in s 8(1) do not all point one way. The second respondent concluded that the children were exposed to harm from which there was a need to protect them (s 8(1)(a)). The applicant, who has never demonstrated any insight into the effects of her behaviour on her children, apparently lacked the capacity to protect them from the risk of harm resulting from her own behaviour (s 8(1)(b)). The second respondent reasonably considered that the applicant's lack of insight and tempestuous relationship with the Department meant that there were no obvious means of safeguarding the children from the apprehended harm while they were in the applicant's care. The risk of harm was of compromise to the children's physical, emotional and developmental needs (s 8(1)(k)).
On the other hand, the applicant did have the capacity to provide for the children's other needs (s 8(1)(c)). The central relationships in the children's lives were with each other and the applicant (s 8(1)(d)). As the magistrate noted in April 2014, the only future the children have is with the applicant. In many respects their interests would be advanced by maintaining the continuity of their care by their mother, in a culturally appropriate environment, and it could reasonably be expected that the loss of stability in their living arrangements and separation from the applicant would itself cause emotional harm to the children (s 8(1)(g), s 8(1)(j) and s 8(1)(m)).
The principles set out in s 9 of the CCS Act also identify conflicting considerations. The principles that parents have the primary role in safeguarding and promoting the child's wellbeing (s 9(a)), and the best way of safeguarding the welfare and promoting the child's wellbeing is to support the child's parents in the care of the child (s 9(b)), tended to favour leaving the children with the applicant. The principles that every child should be protected from harm (s 9(c)) and live in an environment free from violence (s 9(d)) pointed the other way. There was an internal tension in the application of that part of the principle in s 9(e) that says that every child should have stable and secure relationships and living arrangements (which supports leaving the children with their mother) and that part which says that every child should have safe relationships and living arrangements (which favours removing the children from the identified risk of harm).
Of particular significance for the present case was the principle identified in s 9(f), which required that intervention action (a term which includes taking a child into provisional care and protection under s 37) should be taken only in circumstances where there was no other reasonable way to safeguard and promote the child's wellbeing. That principle was applied by the second respondent when she considered whether there was any alternative way of protecting the children, and concluded that there was not.
This was a difficult case for the second respondent to assess. It was not, for example, a case where children were completely neglected by a drug‑addled parent, or exposed to serious physical injury or sexual assault. In such a hypothetical case, it may be easy to conclude that the best interests of the child require that they be removed from a hostile environment despite the detriment which can be caused by the removal of a child from his or her parents. However, this was not such a case. The present case required the different potential detriment to the wellbeing of the children which would result from taking the children from their mother's care to be balanced against risks to wellbeing which the children faced while in their mother's care.
I must remind myself that Parliament has not invested in this court the responsibility for deciding what is in the best interests of the children when a power is exercised under s 37 of the CCS Act. Parliament has conferred that function on the second respondent (and ultimately, the Children's Court). The question for me is not where the best interests of the children actually lie. For me to proceed on that basis would be to intrude into the functions conferred on the second respondent by Parliament. The question for me is rather whether the second respondent has acted within the confines of the power conferred on her by Parliament; ie, whether it was reasonably open to the second respondent to regard taking the children into provisional protection and care as in the best interests of the children.
The second respondent identified a risk to the wellbeing of the children, and was concerned that they were exposed to physical and psychological abuse. The only way that she could see to protect the children from that risk to their wellbeing was to remove them from the applicant's care. Further, the second respondent was not deciding whether the children would be permanently removed from their mother's care. If she removed the children, they would either be returned to the applicant by the first respondent in two working days, or the Children's Court would have an opportunity to consider what was in their children's best interests shortly thereafter.
I am not satisfied that the second respondent's decision to take the children into provisional care and protection was an obviously disproportionate response. Nor did the second respondent's decision lack any evident and intelligible justification. The justification was removing the children from the immediate and substantial risk to the children's wellbeing which the second respondent had identified. Given the tension between the different considerations identified in s 8(1) of the Act, it cannot be said that a reasonable officer could not have decided that the children should be taken into provisional protection and care if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Determining where the best interests of the children lay, which involved balancing competing considerations, was a function conferred on the second respondent by the CCS Act. The second respondent did not act unreasonably by concluding that it was in the children's best interests to be taken into provisional protection and care in all of the circumstances I have described.

Ground 3: consideration and application of principles in s 9 of the CCS Act

The applicant contends that the second respondent failed to apply, or have regard to, the principle identified in s 9(f) of the CCS Act. This ground also fails on the facts. Paragraph 29 of the second respondent's affidavit indicates that she did have regard to, and apply, this principle in making the decision to take the children into provisional protection and care. Alternatives were considered and reasonably discounted.
To the extent that the applicant asserted that the second respondent failed to apply or have regard to the other principles identified in s 9 of the Act, the evidence is to the contrary. I accept the respondents' submissions that the impugned action was taken consistently with the principles to be observed in the administration of the CCS Act, for the reasons I have explained.
For these reasons, I do not consider the third ground which I have considered to have been made out.

Other matters

The applicant's grounds, affidavit and submissions do raise a number of other matters which go the question of the merits of the decision to remove the children from her care. For example, she contends that there was no actual immediate and substantial risk to the children's wellbeing. As I have explained, my role on this application for judicial review is to decide whether action has been lawfully taken and a decision has been made within the parameters which Parliament has prescribed for the valid exercise of the statutory powers which it has conferred on an officer of the executive government. The other matters which the applicant has raised do not go to the question of whether the power conferred on the second respondent by s 37(2) of the CCS Act was lawfully exercised. I have not, therefore, analysed those matters in any detail in these reasons. Rather, I have attempted to distil from material filed by the applicant the arguments which had the potential to lead to the conclusion that the second respondent's decision was infected by jurisdictional error.

Consequences of conclusion that the second respondent's decision is valid

I have concluded that the applicant has failed to establish that the second respondent's decision of 3 March 2015 under s 37(2) of the CCS Act was not validly made. The legal consequence is that the applicant's children were taken into provisional protection and care on 3 March 2015. They will retain that status until one of the events specified in s 29(3) occurs. There is no evidence that any of those events have yet occurred. In practical terms, in this case the children will remain in provisional protection and care until the Children's Court makes an interim order requiring them to be placed with the applicant or some other person under s 133(2)(a) or (c) of the Act, or the Children's Court determines the first respondent's protection order application.
While the children are in provisional protection and care the first respondent has responsibility for the day‑to‑day care, welfare and development of the children to the exclusion of any other person.

Validity of the interim order

The conclusions I have reached above mean that the challenge to the order of the Children's Court made on 10 March 2015 is largely moot. Even if that decision were set aside, that would not affect the continuing status of the children as children in provisional protection and care. Whether or not the interim order is valid, the Children's Court will consider the appropriate interim placement of the children on 24 April 2015. There is no discernible practical impact of an order setting aside the interim order of 10 March 2015 in these circumstances.
It is a little difficult to discern exactly what the magistrate has done from the transcript to which I have referred and the terms of the interim order. I think the better view is that the Children's Court has made an order that the children remain in provisional protection and care until further order of the court. That was the interim order which the first respondent sought in her application, and the interim orders are expressed to be made on that application.
The question of what the Children's Court has done is clouded by the reference to s 133(2)(g) of the CCS Act, as the power to order that a child remains in provisional protection and care is conferred by s 133(2)(b) of the CCS Act. However, as counsel for the respondents and counsel for the Attorney General point out, reference by an administrator to the incorrect source of power does not invalidate an administrative decision if there is another head of power available and all conditions precedent to its valid exercise have been satisfied.[46] The magistrate's reference to the wrong paragraph of s 133(2) of the CCS Act does not invalidate his decision in the present circumstances.
[46] Mandurah Enterprises v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [85]; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 218 [124].
The situation is also confused by the fact that the order is expressed as a declaration that each child 'is in provisional protection and care'. Read literally, this might be construed as a binding declaration of right as to the efficacy of the second respondent's decision of 3 March 2015 to take the children into interim protection and care. If the magistrate had attempted to make such a declaration I doubt that the order would have been within power. While there is no doubt that the power conferred by s 133(2)(g) is wide and flexible, I was not convinced by the Attorney General's submissions that it extends so far as to authorise the grant of declaratory relief as to the validity of past actions taken by officer of the Department. However, I do not think that the magistrate intended to make a declaration of this kind.
In my view, the order made by the magistrate on 10 March 2015 should be taken to be an order that the children remain in care and protection until further order of the Children's Court. That order does not have any particular effect on the status of the children or the duties of the second respondent in relation to them. The practical effect of the order is dealt with above.

The magistrate had the affidavit of the second respondent affirmed on 5 March 2015 before him when he made the order of 10 March 2015. The material in that affidavit conveyed the substance of the information on which the second respondent had based her decision to take the children into care. For the same reasons that it was open to the second respondent to conclude that it was in the best interests of the children that they be taken into provisional protection and care, it was open to the magistrate to conclude that the children should remain in that care, until the placement hearing on 24 April 2015.
I also infer from the transcript that the magistrate had limited time to deal with the matter on 10 March 2015. He also considered that other parties should be notified of the application. The magistrate programmed the matter for a placement hearing on 24 April 2015. In all the circumstances it was open to the magistrate to conclude that the status quo should be maintained until the court was in a position to consider the question of the children's placement in more detail on 24 April 2015. Practical considerations of case management and scheduling are not foreign to the exercise of discretion under s 133(2) of the CCS Act.[47]
[47] See the discussion in Meredith v CEO, Department for Child Protection [2014] WASC 265.
It is also alleged that it was not open to the magistrate to be satisfied of the matter referred to in s 46 of the CCS Act, which provides that the Children's Court must not, on a protection application, make a protection order in respect of the child unless the court is satisfied that making the order would be better for the child than making no order at all. Section 46 governs the making of a protection order. An interim order made under s 133(2) of the CCS Act is not a protection order.[48] Despite a suggestion to the contrary in a passage of Commissioner Sleight's reasons in JT,[49] I am not satisfied that s 46 of the CCS Act governs the exercise of the court's discretion to make an interim order. This may be of little practical moment, however, as the discretion under s 133(2) of the CCS Act is to be exercised having regard to the best interests of the child as the paramount consideration.
[48] Section 43 of the CCS Act.
[49] JT, [61].
For the above reasons, I am not satisfied that the applicant has made out her grounds, which assert that it was not open for the magistrate to make the interim order of 10 March 2015.

Remedies

The principal remedy sought by the applicant is a writ of mandamus directed to the first respondent to perform what is said to be her public duty to return the children to the applicant. It follows from my conclusion, that the second respondent validly took the children into provisional care and protection under s 37(2) of the CCS Act, that the first respondent is under no such duty.
If I had been satisfied that the applicant has made out her grounds for challenging the interim orders of the Children's Court made on 10 March 2015, a number of procedural questions would have arisen. The proper means for challenging an interim order made under s 133(2) of the CCS Act is by way of an appeal under s 41 and s 42 of the CCWA Act.[50] The availability of alternative relief of that kind counts against the grant of prerogative relief in the exercise of the court's discretion in all but exceptional circumstances.[51]
[50] S (a child) v CEO, Department for Child Protection [2008] WASC 229 [33]; PVS v CEO, Department of Child Protection [2009] WASCA 234 [8]; MCL v CEO, Department for Child Protection [2015] WASC 39 [6] ‑ [7]; JT [4] ‑ [6].
[51] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [134] ‑ [140].
The situation is further complicated by s 35 of the MC Act, which is applied to the Children's Court by s 4(1)(b) of the CCWA Act. Section 35, as applied, precludes the issue of writs of mandamus, prohibition or certiorari to a magistrate of the Children's Court.
Had I felt the grounds relied on by the applicant to be established, I would have treated the application for review of the decision of 10 March 2015 as an application for a review order under s 36 of the MC Act, which is also applied to the Children's Court by s 4(1)(b) of the CCWA Act. I would then have exercised the power conferred by s 36(5)(a) of the MC Act to order that the application be treated as an appeal.
That would not have seen an end to the procedural issues, because it would have been necessary to consider whether the children ought to have been joined to the appeal and an independent lawyer appointed to represent the children under s 148 of the CCS Act.[52] A question would also have arisen as to whether, even if grounds were established, any appeal should be dismissed on the ground that there was no substantial miscarriage of justice,[53] on the basis that the Children's Court order had no actual effect on the rights of the applicant or the duties of the first respondent in relation to the children.
[52] See the discussion in MCL [31] ‑ [45].
[53] Section 14(2) of the CP Act.
As I have concluded that the grounds relied on by the applicant to challenge the Children's Court decision of 10 March 2015 have not been made out, it is unnecessary to consider these procedural issues further.
Given that none of the applicant's grounds have been established, the appropriate order is simply that the applicant's application be dismissed.

Future proceedings in the Children's Court

There were two matters provisionally contemplated by the magistrate for future hearings in the Children's Court which, while they do not affect the validity of any of the impugned decisions, caused me some concern. Although it is unnecessary for the purposes of determining the present application to do so, I consider it appropriate to make the following two comments which may assist the Children's Court in future hearings of this matter.
The first comment concerns observations by the magistrate on 10 March 2015 indicating that he might consider making an interim order placing the children in the care of a person in the Peoples Republic of China. I very much doubt that it is properly open to the court to make an interim order placing a child in a location outside Australia, where neither the first respondent nor the Children's Court have any authority over the child where there are no arrangements in place between Australia and the country concerned which could secure the return of the child. If such an order was made, and the court's ultimate conclusion was that no protection order should be made, the court could be in a position where it has no power to compel the return of the child to his or her parents. I doubt whether such an outcome would be sanctioned by the CCS Act.
The second comment concerns what appeared to be a proposal for Magistrate Hogan to deal with the placement hearing and the application for a protection order. In my view that is a dangerous course for the magistrate to adopt, at least in relation to the application for protection orders. It is well‑established that one of the ways an apprehension of bias may arise is where a judicial officer has, in earlier proceedings, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact.[54] I accept that the point may be waived by a party, and on 10 March 2015 the applicant indicated that she was happy for the magistrate to deal with the matter. I suspect that the applicant's attitude to the magistrate may have changed since he made what the applicant regards as an adverse ruling against her. In any event, the fact that the appellant is self‑represented means that she is unlikely to fully appreciate the significance of a waiver. Given the very strong adverse findings which the magistrate made in relation to the applicant in his reasons of April 2014, it seems to me unwise for the magistrate to sit on any future proceedings in which the credibility of the applicant or the reliability of her evidence is a significant issue.
[54] Frigger v Kitay [No 8] [2015] WASC 104 [5] citing Livesey v NSW Bar Association (1983) 151 CLR 288, 300 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [126].

Orders

For the above reasons I would dismiss the application for judicial review. As the respondents did not seek costs in the event that the application was unsuccessful, I make no order as to costs.