YPW v Chief Executive Officer, Department of Child Protection
[2015] WASC 271
•28 JULY 2015
YPW -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION [2015] WASC 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 271 | |
| 28/07/2015 | |||
| Case No: | CIV:2032/2015 | 22 JULY 2015 | |
| Coram: | MITCHELL J | 22/07/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Applications for judicial review dismissed Further application for judicial review to be treated as an appeal | ||
| B | |||
| PDF Version |
| Parties: | YPW CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION DEPARTMENT OF CHILD PROTECTION |
Catchwords: | Judicial review Child protection More appropriate forum Refusal on discretionary grounds Application for judicial review treated as an appeal |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 4(1)(b) Magistrates Court Act 2004 (WA), s 36 |
Case References: | Blum v Boothman [2014] WASC 452 YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION
First Respondent
DEPARTMENT OF CHILD PROTECTION
Second Respondent
Catchwords:
Judicial review - Child protection - More appropriate forum - Refusal on discretionary grounds - Application for judicial review treated as an appeal
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 4(1)(b)
Magistrates Court Act 2004 (WA), s 36
Result:
Applications for judicial review dismissed
Further application for judicial review to be treated as an appeal
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Ms R Young
Second Respondent : Ms R Young
Solicitors:
Applicant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Blum v Boothman [2014] WASC 452
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
- MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
1 The applicant seeks judicial review of four decisions. The first decision is a decision of the first respondent to take the applicant's children into provisional protection and care. The second decision is a decision of the Children's Court of Western Australia to make an interim order that the applicant's children are in provisional protection and care. The third decision is my dismissal of the applicant's earlier application for judicial review of the first and second decisions. The relevant background circumstances, and my reasons for dismissing the earlier judicial review application, are in YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123.
2 The applicant has a right of appeal against my refusal of her previous judicial review application. She has exercised that right of appeal to the Court of Appeal. That was the appropriate manner of challenging my decision. That appeal, which has not yet been heard, is the appropriate forum in which to challenge the first three challenged decisions. Even if it were otherwise open to the applicant to bring a second application for judicial review of the first two decisions, or to ask a single judge of this court to review a decision of the court, the appeal is the more appropriate forum for resolving the issues which the appellant seeks to agitate. Moreover, it is clear that the general division of this court does not judicially review its own completed decisions.
3 In her oral submissions, the applicant said that she understood that matters would be dealt with by the Court of Appeal, but had included reference to the first three decisions in the judicial review application as background to the fourth decision which she seeks to challenge. It is appropriate to have regard to that background. However, it is not necessary to express a challenge to the validity of the first three decisions in the application for judicial review to enable the court to take that background into account.
4 As I noted in Blum v Boothman [2014] WASC 452, the fact that there is an available alternative avenue of relief counts strongly against the discretionary grant of certiorari and declaratory relief. The pending appeal from my earlier decision to the Court of Appeal is an available and much more appropriate avenue for challenging the first three decisions referred to in the application for judicial review. In those circumstances, and where the applicant seeks to refer to the first three decisions only as background information, it is clear that the application so far as it relates to the first three decisions should be refused on discretionary grounds even if they otherwise had merit. It is therefore appropriate to dismiss pars 1 - 13 of the application for judicial review on the ground that the application has no reasonable prospect of success.
5 The fourth decision under challenge is identified in the judicial review application as an alleged failure by officers of the Department for Child Protection and Family Support to comply with an order of the Children's Court made on 17 June 2015 relating to contact with the children. Those orders require the Department to arrange contact between the applicant and her children at times or places to be agreed between the applicant and the Department.
6 I am advised by the parties that, on 20 July 2015, a magistrate of the Children's Court refused applications by each party to vary the provision for contact contained in the orders of 17 June 2015.
7 So far as the application seeks to enforce the order of 17 June 2015, s 39 and s 39A of the Children's Court of Western Australia Act 1988 (WA) (CCWA Act) provide the means of enforcing an order of the Children's Court. If there had been a failure to comply with an order of the Children's Court then those sections provide a more appropriate enforcement mechanism for the orders than an application for judicial review. The order which the applicant seeks is an order in the nature of mandamus directing relevant officers of the Department to comply with an order of the Children's Court. Such an order by this court would itself need to be enforced. The applicant already has an order of a court for which enforcement proceedings are available. An order of this court requiring an officer of the Department to comply with the orders of 17 June 2015 would not advance the position. In these circumstances, it is clear that relief sought in the present application in relation to the Department's compliance with the orders of 17 June 2015 should be refused on discretionary grounds.
8 In addition, the material before me does not disclose an arguable case that the Department has failed to comply with the orders of the Children's Court. Those orders provided for contact at times and places to be agreed between the applicant and the Department. The applicant and the Department have attempted to reach agreement but have different views as to appropriate times and locations. The fact that they have not been able to agree times and places, does not mean that the Department has failed to comply with the orders.
9 For these reasons, I would also dismiss the application for judicial review so far as it relates to the decision referred to in pars 14 - 23 on the ground that it has no reasonable prospect of succeeding.
10 However, in her oral submissions today, the applicant indicated that she also wished to challenge the making of the orders of 17 June 2015, and the refusal of her application to vary those orders on 20 July 2015, on various grounds.
11 The orders of 15 June 2015 were purportedly made under s 133(2)(f) of the Children and Community Services Act 2004 (WA) (CCS Act). An order in relation to a variation application would be made under s 134 of the CCS Act. Both provisions are in pt 5 of the CCS Act.
12 Section 42 of the CCWA Act provides to a parent of the relevant child a right of appeal against an order of a Children's Court magistrate made on the hearing of an application under pt 5 of the CCS Act. Such an appeal is to be made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA).
13 Based on what the applicant has told me today, it appears that she might have an arguable case for appealing against the orders relating to contact with her children. It is appropriate that the applicant be provided with a further opportunity to attempt to make that case. Rather than dismiss the judicial review application altogether, I propose to adopt the course contemplated in [238] of my previous reasons. That is, I will treat the judicial review application as an application for leave to appeal against orders made by the Children's Court on 17 June 2015 and 20 July 2015 in relation to contact.
14 The first respondent is the appropriate respondent to such an appeal. The Department is not a necessary or appropriate party. I will, therefore, order that the chief executive officer be named by her correct title, and refuse the application for relief against the second respondent.
15 I will therefore make the following orders:
1. The application for judicial review be refused so far as it relates to the decisions identified in pars 1 - 23 of the application and so far as it seeks relief against the second respondent.
2. The application for judicial review be treated as an application for a review order under s 36 of the Magistrates Court Act 2004 (WA), read with s 4(1)(b) of the Children's Court of Western Australia Act 1988 (WA), in respect of orders made by the Children's Court of Western Australia on 17 June 2015 and 20 July 2015 in relation to contact between the applicant and her children (Orders).
3. The application referred to in order 2 be treated as an application for leave to appeal against the Orders under pt 2 of the Criminal Appeals Act 2004 (WA).
4. The Chief Executive Officer of the Department for Child Protection and Family Support be the respondent to the appeal.
5. By 29 July 2015 the respondent file and serve on the applicant a book of any material which may be necessary to determine the application and any appeal.
6. By 3 August 2015 the applicant file and serve on the respondent her grounds for appealing against the Orders and the affidavit which she sought to rely on in the Children's Court proceedings.
7. By 6 August 2015 the respondent file and serve on the applicant the respondent's submissions in opposition to the application for leave to appeal and any appeal.
8. The application for leave to appeal and any appeal be listed for hearing at 10 am on 11 August 2015.
9. The matter be listed for directions at 2.15 pm on 24 July 2015.
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