CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES -v- NCS and CAS [2026] WACC 6

[2026] WACC 6 Page 1 JURISDICTION : CHILDREN'S COURT OF WESTERN AUSTRALIA CITATION : CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES -v- NCS and CAS [2026] WACC 6 CORAM : HUGHES DCJ HEARD : 17 AUGUST 2026 DELIVERED : 17 AUGUST 2026 PUBLISHED : 28 AUGUST 2026 FILE NO/S : PC 372 of 2025 BETWEEN : CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES Applicant AND NCS First Respondent CAS Second Respondent AS Child Catchwords: Withdrawal of an application for a protection order - Is leave of the court required? -- 1 of 7 -- [2026] WACC 6 Page 2 Legislation: Children and Community Services Act 2004, s 28(20(c), s 35, s 37, s 44(1), s 45 Magistrates Court (Civil Proceedings) Act 2004, s 20 Magistrates Court (Civil Proceedings) Rules 2005, r 29 Result: Respondent mother's application to adjourn dismissed Amended application for protection order (time limited) withdrawn Representation: Counsel: Applicant : Mr B Currie First Respondent : Second Respondent : Child : Ms K Williams Solicitors: Applicant : Department of Communities First Respondent : No Appearance Second Respondent : No Appearance Child : Arlig Law Case(s) referred to in decision(s): BR v The Chief Executive Officer for the Department of Communities [2022] WASC 9 Chief Executive Officer Department of Children and Families v MGM [2012] NTSC 69 -- 2 of 7 -- [2026] WACC 6 HUGHES DCJ Page 3 HUGHES DCJ: The parties 1 This case is about AS, who is currently 13 years of age. 2 AS's mother is NCS (the respondent mother) and AS's father is CAS (the respondent father). AS has a younger brother, LS, who is currently 9 years of age. LS is not a child in care and remains in the care of the respondent mother and respondent father. The issue 3 The sole issue in this case is: Does the Chief Executive Officer for the Department of Communities (the Department) require the leave of the court to withdraw an application for a protection order? 4 The respondent mother opposes the Department withdrawing the application. It appears from the respondent mother's application that the respondent father joins in the respondent mother's application. 5 As set out in the respondent mother's application dated 14 August 2026 and affidavits filed on 12 August 2026 and 14 August 2026, the basis for opposing the withdrawal is the respondent mother's dissatisfaction with the Department. The respondent mother seeks, in summary, an order requiring the Department to pay money or expend certain resources in order to 'restore or fix AS' and determine the disputed child protection concerns. 6 The Department seeks to withdraw its application on the basis that since June 2026, AS has returned home to her parents, is attending school and there are currently no child protection concerns. 7 The separate representative, who represents AS on best interests,1 does not oppose the Department withdrawing the application, although she has some reservations. 8 At the conclusion of the hearing on 17 August 2026, I allowed the Department to withdraw the application for a protection order, finding the Department do not require the leave of the court to withdraw an application for a protection order. These are my reasons for that decision. 1 Letter from Ms Williams dated 15 October 2025 on the court file. -- 3 of 7 -- [2026] WACC 6 HUGHES DCJ Page 4 The initial application 9 On 10 September 2025, AS was taken into care without a warrant. AS was 12 years of age at the time. Prior to being taken into care, AS was self-selecting to live at two different friends' houses since April 2025. 10 At the time AS was taken into care, AS was refusing to return home to her parents. 11 On 12 September 2025, the Department filed an application seeking a protection order (time limited) for 2 years pursuant to sections 28(2)(c)(i) and 28(2)(c)(iii) of the Children and Community Services Act 2004 (CCS Act). The Department's position was that AS was in need of protection due to AS suffering or was likely to suffer physical and/or emotional abuse. The relevant history of proceedings 12 Prior to AS coming into care, the family had a long and complex history with the Department dating back to 2022, when there were concerns around physical abuse in the context of the respondent mother's excessive discipline of AS and LS. There were also concerns around emotional harm and the respondent mother yelling, screaming, name-calling, threatening and blaming AS, which was affecting AS's mental health. The case was complicated by the fact that a various times both the respondent mother and respondent father were difficult to engage and by the fact that the respondent mother often presented as erratic, dysregulated and her speech disorganised and tangential. 13 The family were subject to a period of monitoring under Intensive Family Support between April and July 2025. 14 After AS was taken into care, AS continued to self-select and live at her friends' houses. The respondent mother's position alternated between consenting to this arrangement, demanding the Department bring AS home and threatening to relinquish care of AS. There were occasions when the respondent mother attended the friends' houses and abused both of them and AS. 15 In December 2025, the Department attempted to work with the respondent mother and respondent father to reunify AS with her parents but were unsuccessful. AS was also no longer able to stay at the two houses she had previously been staying at and went to stay with different friends on an ad hoc basis. -- 4 of 7 -- [2026] WACC 6 HUGHES DCJ Page 5 16 In June 2026, AS returned home to live with her parents and has remained there. AS has returned to school. The Department report that there are no child protection concerns. This is disputed by the respondent mother. The respondent mother says AS is a risk to the respondent mother, the respondent father and LS due to her aggressive behaviour towards them. Determination 1 I find there is no provision in the CCS Act that requires the Department to seek leave of the court to withdraw an application for a protection order. 2 As there is no provision in the CCS Act, the court is not performing a function under the CCS Act and there is no requirement for the court to consider the best interests of the child as contained in s 7 of the CCS Act. 3 As discussed in the case of Chief Executive Officer Department of Children and Families v MGM,2 the court's jurisdiction is only enlivened once an application is made to the court by the Department, noting that no-one, other that the Department, are empowered under the CCS Act to bring an application for a protection order.3 Not the parents, other family members or a concerned member of the community can bring an application for a protection order. In order to bring an application for a protection order under to the CCS Act, there firstly, must either be a reasonable basis for an authorised officer to believe the child is in need of protection or that an officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing.4 Secondly, that the child is in need of protection and the protection order sought is needed to protect the child from harm.5 It therefore follows that if the Department are no longer of either belief, then they are required to withdraw the application for a protection order because the legal basis for the application, namely their belief, no longer exists.6 4 It cannot be the case that even if I were to accept the respondent mother's submission (making it absolutely clear that I do not, but assuming if I did accept) that AS is physically aggressive towards the 2 Chief Executive Officer Department of Children and Families v MGM [2012] NTSC 69 (MGM) [37]. 3 CCS Act, s 44(1). 4 CCS Act, sections 35 and 37. 5 CCS Act, s 45. 6 MGM [38]. -- 5 of 7 -- [2026] WACC 6 HUGHES DCJ Page 6 family and was therefore in need of protection, that my belief can somehow replace the Department's lack of belief and the jurisdiction of the court remains enlivened. As the Department stated upon the withdrawal of the application for a protection order, if the Department subsequently becomes aware of information capable of forming a basis for an authorised officer to believe that AS is in need of protection, then the Department is obligated under the CCS Act to take action in accordance with that belief, which the Department indicated they are prepared to do. 5 Further, as set out in the case of BR v The Chief Executive Officer for the Department of Communities:7 The practice and procedure of the Children's Court is set out in s 37 of the CC Act (the Children’s Court Act) which relevantly provides. (1) Subject to this Act and to the rules of court, the President is responsible for the administration of the Court, the disposition of the business of the Court and for its practice and procedure. (2) Subject to this Act and the Children and Community Services Act 2004 and any other Act that confers jurisdiction on the Court, the practice and procedure of the Court shall be governed by rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court – (a) the practice and procedure of the Court when it is exercising the jurisdiction conferred by section 19(1) shall be that provided by the Criminal Procedure Act 2004; and (b) the practice and procedure of the Court when it is exercising the jurisdiction conferred by section 20 shall be that provided by the Magistrates Court (Civil Proceedings) Act 2004 and the rules of court made under that Act by the Magistrates Court. 6 Rule 29 of the Magistrates Court (Civil Proceedings) Rules 2005 provides that a party may discontinue a claim and there is no requirement for leave of the court. Therefore, my determination that there is no provision in the CCS Act that requires the Department to seek leave of the court to withdraw an application for a protection order is entirely consistent with the Magistrates Court (Civil Proceedings) Rules 2005. 7 BR v The Chief Executive Officer for the Department of Communities [2022] WASC 9 [30]. -- 6 of 7 -- [2026] WACC 6 HUGHES DCJ Page 7 Conclusion 7 The respondent mother's application filed on 14 August 2026 to adjourn the hearing on 17 August 2026 is dismissed. The application is dismissed because I found that the Department do not require leave of the court to withdraw an application for a protection order. The respondent mother's opposition to the Department withdrawing was not a reason to adjourn proceedings. 8 In answer to the question raised: Does the Department require leave of the court to withdraw an application for a protection order? The answer is no. 9 The (amended) application for a protection order (time limited) filed by the Department on 31 March 2026 is withdrawn. I certify that the preceding paragraph(s) comprise the reasons for decision of the Children's Court of Western Australia. CK Associate to Judge Hughes 28 AUGUST 2026 -- 7 of 7 --