I today make a submission to Court on behalf of the CEO of the Department of Communities in response to the application made under section 39 of the Children's Court of Western Australia Act 1988.
The parties have conferred in relation to the application, and the parties propose, subject to the Court's leave, that the application be resolved by reading this submission to the Court, and the application being withdrawn without a contempt finding being made.
The purpose of this statement is to provide a chronology and explanation for the Department's failure to comply with the Court’s interim order of 10 May 2022, and to provide a formal and public apology to the Court and to the individual parties involved.
The substantive matter before the Court was a protection order application made by the CEO seeking an order that the child be placed in the care of the CEO until aged 18. The parties to the matter were the CEO, the Grandmother of the child, the mother of the child, the father of the child and the child. The Grandmother and the mother of the child were self-represented litigants during the proceedings which led up to this section 39 application. The other parties were legally represented.
Approximately one year after the protection order application was filed, the Grandmother made an application for an interim order that the child be placed with her. Both the application for a protection order and the application for an interim order were heard together in the Children's Court on 21 - 25 March, 30 March and 8 April 2022. The decision on each application was reserved.
On 5 May 2022, prior to any decision of the Children's Court, the Department advised the parties and the Children's Court of a substantial change in circumstances in relation to the child, namely that the child's then current carer was no longer able to care for the child.
On 10 May 2022, the matter came before the Children's Court. The Department’s lawyer provided information to the Court about the proposed change in care arrangements and the Department’s proposed plan to ensure supports to the child during any transition period.
After hearing from the parties, the Magistrate made interim orders pursuant to section 133 of the Children and Community Services Act 2004, including an order that the child be placed with the Grandmother. The Children's Court indicated it would provide reasons for its decision in 7 days.
The interim orders made on 10 May 2022 were not complied with prior to a stay being granted by the Supreme Court on 31 May 2022. On the application of the CEO, that stay was then extended without opposition from the other parties to enable the child to be placed with the Grandmother by 7 June 2022. The Department complied with that order and the child has remained living with the Grandmother since 7 June 2022.
The total time between when the interim order was made and when the stay was granted was 21 days.
On 15 September 2022 the Children's Court accepted the Department's application to withdraw its application for a Protection Order, and the child remains in the care of the Grandmother.
There are a number of reasons which explain the actions taken by the Department: First, the order made on 10 May 2022 did not contain a specific date by which the Department was to comply. During the hearing on 10 May 2022, the Magistrate explained that no date was included in the relevant order as the Magistrate was working to the timetable put forward by the Department, being that the child would be moved on 13 May 2022. The Department therefore understood that it had until 13 May 2022 to place the child with the Grandmother.
Secondly, on 11 May 2022, the Department was advised that the child's carer had contracted COVID. The Department incorrectly believed that it could not move the child until 18 May 2022, being the time when the 7 day isolation period expired. The Department advised the parties of this on 12 May 2022. The Department also advised the Court of this on 17 May 2022, during a hearing when reasons for the decision made on 10 May 2022 were provided. At the hearing on 17 May, the Magistrate did not appear to the Department to have any concern with the Department adopting this course of action and therefore the Department continued with this plan.
Thirdly, the Department subsequently made a decision to appeal the orders made on 10 May 2022. The Department advised the parties of its intention to appeal on 19 May 2022 and that it did not propose to place the child with the Grandmother pending the outcome of the appeal.
On 20 May 2022, the Legal Service representing the father notified the Department that in its opinion, the Department was in contempt of court because of its failure to relocate the child. The Legal Service obtained an urgent hearing in the Children's Court on the same day to raise this issue. During the hearing on 20 May 2022, the Children's Court told the Department that it was required to comply with the interim order, pending a stay being granted.
On 24 May 2022, the lawyers for the Department filed an Appeal Notice and an application for a stay in the Supreme Court.
On 31 May and 2 June 2022, Justice Hall in the Supreme Court admonished the Department for its failure to comply with the interim orders and to ensure that the stay application was heard faster. On 2 June 2022, an apology was offered on behalf of the CEO to the Supreme Court in open court by counsel for the CEO.
The Department acknowledges it did not comply with the interim order after the decision to appeal was made, and prior to the stay being granted. The Department has reflected on the circumstances and accepts this occurred due to inadequate internal communication and a resulting misunderstanding by the Departmental officers. The stay ended up taking longer to lodge and to be heard than the Department originally anticipated. Notwithstanding the intended appeal and stay application, the Department accepts that it was required to comply with the orders in the interim.
On behalf of the CEO, I today formally and publicly apologise to this Court and to the parties for the events which occurred in this case. Present in court today representing the CEO is Shayne Maines, Deputy Director General Governance, Integrity and Reform and Melanie Samuels, Deputy Director General of Community Services.
The Department appreciates its obligation to comply with all orders of the Children's Court. The Department has taken a series of steps to ensure that what occurred here does not occur again in the future, including:
- The Legal and Business Services team in the Department has conducted a review of this matter to ensure that lessons are learned and omissions of this nature are avoided in the future;
- At a recent Departmental Litigation team meeting, the message was delivered that lawyers in the team need to advise clients of the importance of complying with court orders. Further discussion at the Litigation team meeting was held concerning the importance of stay applications being filed without delay;
- The Legal and Business Services Division has worked closely with the Community Services Division to ensure that all officers involved in making decisions with respect to children in the care of the CEO are alerted to the importance of complying with court orders, including when an appeal is in the process of being lodged. To achieve this, an updated Case Practice Manual entry has been published and the Community Services, Service Delivery and Operational Improvement team has issued an email alert advising of the update entry;
- The Minister for Child Protection has also been advised of this matter and been provided with copies of the transcript of proceedings before His Honour Justice Hall; and
- The Deputy Director General Governance, Integrity and Reform has provided his direct contact details to the parties' involved representatives, to enable them to contact him directly if they wish to raise further issues of concern regarding the actions of the Department, and he would like to meet with the parties in person to offer a personal apology.
The CEO respectfully submits that in all the circumstances, the Court note the apology and the submissions made today, and that the First Respondent be given leave to withdraw the application.
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