John Toohey Chambers

JTC members Peter Hannan and Rachel Oakeley recently acted for the successful Appellant in an appeal before the Supreme Court of Western Australia. 

See: REF v Chief Executive Officer of the Department of Communities [2023] WASC 89 (27 March 2023).

Hannan and Oakeley conducted the appeal on a pro bono basis.

The key points to emerge from the appeal are as follows:

  • The case is primarily concerned with the construction and application of section 147 (e) of the Children and Community Services Act 2004 (WA) (CCS Act), which provides that, in addition to inter alia the child and the child's parents, a "party to the proceedings" includes "any other person considered by the [Children's] Court to have a direct and significant interest in the wellbeing of the child".
  • The child's foster mother had filed an application in the Children's Court, under section 147 (e) of the CCS Act, for joinder as a party to an existing proceeding so as to be heard on an application by the Department to extend a protection order. A magistrate of the Children's Court refused that application. The magistrate took the view that the foster mother was a "paid agent of the Department to provide a service" and so could not come within section 147 (e) of the CCS Act. On appeal, the Supreme Court held that such an approach demonstrated an error of law - essentially taking into consideration an irrelevant consideration.
  • The magistrate was critical of the foster mother for having developed an attachment to the child. The Supreme Court noted that the formation of such attachments was a matter of human nature. The Supreme Court concluded that the magistrate's approach demonstrated the taking into account of an irrelevant consideration and thereby an error of law.
  • In the result, the Supreme Court set aside the magistrate's refusal of the joinder application, substituted an order that the foster mother be joined as a party to the proceeding, set aside the extension of the protection order, and directed that the application to extend the protection order be remitted to the Children's Court for hearing by another magistrate.

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