Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Layla, Jasmine and Zara [2023] NSWChC 14 Hearing dates: 21 August 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Care and protection Before: Judge Skinner, President of the Children's Court of NSW Decision: Application for costs dismissed Catchwords: CHILDREN – Care and protection – costs – exceptional circumstances – scope of care proceedings Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Children's Court Act 1987 (NSW) Cases Cited: Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11 NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 at 12 Category: Costs Parties: The Mother The Father The Secretary, Department of Communities and Justice Representation: Ms Wong (Secretary) Mr King and Mr Size (Mother) Mr McIntyre (Father) File Number(s): 2020/00097591 Publication restriction: Pseudonyms have been used to protect the identity of the children and family members. JUDGMENT Application 1. The Mother has filed an application for costs pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ('the Act'). 2. On 28 June 2023, the Court determined a s 90 application filed by the Mother seeking a rescission of care orders made at Parramatta Children's Court on 25 June 2021. The orders were rescinded. 3. The Mother is seeking a gross sum payment of $135,382.69 for costs incurred in all care proceedings since the children were removed in March 2020. 4. The respondent is the Secretary, Department of Communities and Justice ('The Secretary'). 5. The Court must determine whether 'costs in care proceedings' relate to a specific application or the entirety of proceedings involving the subject children. 6. The Court must then determine whether there are exceptional circumstances that justify the Court making an 'order for costs in care proceedings'. Onus and Standard of Proof 1. The applicant bears the burden of proof. 2. The standard of proof is on the balance of probabilities pursuant to s 93(4) of the Act. Background 1. The Father and the Mother have three daughters, Layla and Jasmine, born 2007 and Zara, born 2011 ('the girls'). The Mother and Father separated in mid-2017 but lived together with the children in the home of the Paternal Grandmother. 2. Intervention by the Department occurred following a number of risk of significant harm ('ROSH') reports regarding the Father's behaviour towards the girls and others. The sole risk to the physical and psychological safety of the girls is the behaviour of their Father. 3. On 23 March 2020, a caseworker applied for a search warrant to enter the family residence and remove the girls. The warrant was granted, and caseworkers attended the home on 25 March 2020 in the company of the Police. 4. The removal was traumatic for the whole family. Police records indicate the Father attempted to hinder the execution of warrants and was forced to the ground and handcuffed. The Mother later saw videos of the girls screaming and resisting being placed in the car. The Paternal Grandmother suffered chest pains and spent two days in hospital. 5. The application initiating care proceedings was listed at Parramatta Children's Court on 27 March 2020. On 1 April 2020, the Court made interim orders that enabled the Mother and the girls to live together. They lived in a serviced apartment until June 2020 when the Father agreed to move out of the Paternal Grandmother's house so the Mother and the girls could return home. 6. Children's Magistrate Devine presided over 18 hearing days prior to making final orders on 25 June 2021. The Court allocated all aspects of parental responsibility, but contact, to the Mother. The Minister was allocated parental responsibility for contact. A s 90A order prevented the Father from contacting the Mother or the girls at work, home or school. 7. The Minister was unable to organise contact between the Father and the girls as the Father refused to accord with the Department of Communities and Justice's ('DCJ') directions regarding contact. He would not attend supervised contact or reply to letters from the girls. 8. The Mother filed a s 86 application for contact with the Father on 25 March 2022, as she was concerned about the lack of contact between the Father and the girls. The Father's first contact was unplanned, unauthorised contact which occurred on 5 December 2022 with the support of the girls. 9. On 22 December 2022, the Court referred the matter for an assessment by authorised clinician Jessica Pratley, a forensic and clinical psychologist. Ms Pratley provided an assessment report on 2 February 2023 which referred to a report she had prepared in the original proceedings. 10. After the December meeting between the Father and the girls, the Father filed a s 90 application seeking a rescission of the orders to restore the common law position of joint parental responsibility for the girls. On 18 January 2023, the Father filed an application seeking removal of the s 90A prohibition. 11. On 19 January 2023, the Mother amended her s 86 contact application to seek rescission of the June 2021 orders and sole parental responsibility pursuant to s 90. 12. The matter was listed before me on 3 February 2023. At that time, the girls were living with their Father in breach of existing orders. In January 2023, the Paternal Grandmother evicted the Mother and girls from her home. The Mother and girls stayed in short-term accommodation and the Father returned to the Paternal Grandmother's home. The older girls, Layla and Jasmine, then returned home and were living with their Father and Paternal Grandmother. The Mother and her younger daughter remained in short-term accommodation but sought an amendment of the orders to enable the Mother and younger daughter Zara to return to the Paternal Grandmother's home with the rest of their family. 13. The Court varied order 7(b) of the s 90A prohibition to allow the Father to remain in the family home with prior authorisation from DCJ. 14. On 28 February 2023 the Mother amended her application to seek a rescission of the care orders and restoration of the common law position. 15. Between 3 February 2023 and 2 March 2023, there were no reports that the girls were at risk of harm while living with their Mother and Father in the home of the Paternal Grandmother. On 2 March 2023, the Court granted leave to hear the Mother's section 90 application. No determination was made regarding the Father's application. 16. The Mother's application was heard over six days. The Court heard evidence from the Mother, Jessica Pratley and Dr Lizabeth Tong. The evidence of the Mother and Jessica Pratley assisted the Court in identifying the protective capacity of the Mother to reduce the likelihood of harm and the magnitude of harm the Father posed to the girls. Dr Tong's evidence was inconsistent and unreliable and did not assist the court. 17. The girls did not want to participate in court proceedings and refused to communicate with their lawyers. The girls each wished to remain in the Paternal Grandmother's home with both parents and they did not want DCJ to have any involvement with their family. 18. On 28 June 2023 the Court rescinded the care orders made on 25 June 2021. The Father withdrew his s 90 application. The Mother and Father sought directions regarding a costs hearing. The matter was adjourned to 21 August 2023 to consider the Mother and Father's applications for costs orders pursuant to s 88. 19. The Mother seeks a costs order relating to all care proceedings since the initiating application was filed in March 2020. 20. The Father was advised that his s 90 application had not been determined by the Court so there was no basis upon which he could seek costs. The Father submitted that, in rescinding the March 2021 order, the Court had reinstated his parental responsibility. He sought to be heard on an application seeking costs from the initial proceedings up until the order that reinstated the common law allocation of parental responsibility. 21. The Secretary submits that the costs application must be limited to costs from 25 March 2022; when the mother filed the s 86 application that was amended to the successful s 90 application. Evidence 1. The Court reviewed the evidence filed in the s 90 application and received additional evidence relevant to costs. Written submissions were filed, and oral submissions were made on 21 August. 2. The Mother relied on an affidavit filed on 28 July 2023, a letter received by the Court on 5 September 2023, an affidavit filed on 3 October 2023 and an affidavit filed on 13 October 2023. The Secretary filed additional written submissions on 22 September 2023. The Mother filed additional written submissions on 13 October 2023 and 25 October 2023. Issues in Dispute 1. There are two main issues in dispute: 1. Whether 'costs in care proceedings' relates to the particular care application or the entirety of care proceedings involving the girls; and 2. Whether there are exceptional circumstances that justify the Court making a costs order. 1. If 'costs in care proceedings' relates to the particular care application before the Court, the Court must determine whether the Mother has satisfied the Court that there are exceptional circumstances that justify the making of a costs order. 2. If 'costs in care proceedings' relates to all care proceedings involving the girls, the Father will be given an opportunity to subpoena and file evidence in a costs application. The legislation regarding 'costs in care proceedings' 1. The jurisdiction of the Children's Court is engaged through the filing of an application which initiates proceedings. Under the Act, the relevant application is an application for a Care Order. 2. The Children's Court's jurisdiction under s 90 is enlivened after the resolution of care proceedings through final care orders. A s 90 application may be filed in relation to any child who is subject to care orders until the care order expires, is rescinded, varied or transferred. An application to rescind or vary a care order can only be made through a s 90 application. 3. A contact order pursuant to s 86 can be made at the time a final care order is made or subsequent to a final care order. A contact order is an auxiliary order to an allocation of parental responsibility. 4. Section 88 provides the Children's Court with a power to order costs: The Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so. Definitions 1. Section 3 directs the definition of 'care proceedings' to s 60: In this Act— care application means an application for a care order. care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86 but does not include a parent capacity order. care proceedings means proceedings under this Chapter. 1. Care applications fall under s 61 of the Act. This section provides: (1) A care order may be made only on the application of the Secretary, except as provided by this Chapter. (1A) A care application must specify the particular care order sought and the grounds on which it is sought. 1. The relevant care application in this matter was filed pursuant to s 90 which provides: (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1AA) An application may be made by— (a) the Secretary, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. (My emphasis) 1. The Mother submitted that 'care proceedings' under s 88 incorporates all aspects of proceedings since the removal of the girls, which led to the application that initiated care proceedings in March 2020 and culminated in the recent rescission of care orders. 2. The Mother submits that even if costs were limited to particular applications, there is no express limitation on when those costs orders might be made. The Mother contends that a judge who determines final orders is not functus officio but remains able to hear an argument as to costs, citing NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 at 12. The Mother submits that she is entitled to seek costs for any applications that resulted in orders where there was no previous argument regarding costs. 3. The Mother filed a significant amount of material outlining the costs she has incurred throughout the proceedings since 2020. She argues that exceptional circumstances may only be apparent after individual applications have been determined. She states that the proceedings have reached finality after three and a half years with a resolution in her favour, and she is entitled to recover costs for the whole proceedings, and if not for the whole proceedings, then for each application that resulted in an order where the Court has not previously made a costs determination. 4. The Secretary submitted that the Mother has interpreted 'proceedings' in the plural but it should be interpreted as relating to the single proceedings initiated by a particular application. 5. The Mother's submissions were not filed in accordance with court filing directions such that the Secretary filed submissions prior to receiving the Mother's submissions. The Secretary has not been heard on the issue of the timing of an application for costs. Determining the scope of 'care proceedings' 1. 'Care proceedings' is defined to mean proceedings under Chapter 5 (titled 'Children's Court proceedings'). Under Chapter 5, care applications can be filed seeking care orders including emergency care and protection orders, examination and assessment orders, orders accepting undertakings, orders for the provision of support services, orders to attend therapeutic treatment, orders for supervision, orders allocating parental responsibility and contact orders. 2. Section 90 applications are made to vary or rescind a care order. Section 90(1A) clearly distinguishes between s 90 proceedings and the proceedings in which the care order was made. 3. The text of s 90(1A) reveals that the definition of 'care proceedings' in s 88 denotes singular proceedings that flow from a care application seeking a particular care order, or an application to vary or rescind an existing care order. 'Care proceedings' do not encompass the entirety of proceedings from removal, through finalisation, appeal, and additional applications that are filed and determined between final orders and the rescission of an order. A plural interpretation of 'care proceedings' is inconsistent with the text of s 90(1A). 4. When a care application is filed the Court receives evidence and determines the application. A decision is made and there is a right to appeal that decision. Applications for costs orders may be made at a time proximate to the determination of the substance of the application, usually by the judicial officer who determined the substantive proceedings. The applicant may seek costs for expenses incurred throughout the proceedings involving interlocutory decisions made by another judicial officer. When the judicial officer deciding costs has not presided over decisions which impact the determination of costs the judicial officer will be assisted by the parties and the court papers. 5. Where orders for costs are limited to costs in particular proceedings the judicial officer can access information about case management, compliance with directions, delays and reason for delays, the strength of the evidence, efforts to resolve the matter or reduce litigation and the merit of the application. A costs order made by the Children's Court may be reconsidered when a matter is successfully appealed. 6. The Mother relies on s 93(2) of the Act and submits that it would be inconsistent with the principle that 'proceedings before the Children's Court are to be conducted with as little formality and legal technicality as the circumstances of the case permit' to place a limit on the ability of a party to apply for costs. The Act does not specify the time for making an application for costs. The Children's Court Act 1987 (NSW) does not mention applications for costs. Appeals to the District Court may be filed within 28 days or through a grant for extension of time to appeal. 7. The Mother has not specified the particular applications for which she belatedly seeks costs. She disputes the processes that led to the resolution of particular applications, particularly those where she made concessions. The recent rescission of the care order does not negate the merit of previous decisions to invoke a right to costs. 8. I do not accept the proposition that a party is at liberty to apply for costs at any time after judgment. Costs may be ordered during proceedings or after judgment but if orders are sought after judgment a party must promptly indicate their intention to seek costs, or state they wish to reserve their position regarding costs until a specified time when an application can be filed. 9. There is no evidence about whether the Mother sought costs orders in prior care proceedings, or whether she had an entitlement to seek costs in those proceedings. Where there is a right to seek a costs order, it is not a right that exists in perpetuity. Parties, including children, are entitled to finalisation of litigation. 10. The Mother's application for costs in all care proceedings cannot be effected. These children have been subject to multiple care applications and appeals since they were assumed into care in March 2020. Each of those care applications have been determined on their merits with relevant judicial officer tasked with resolving related costs applications. 11. Some children in the care jurisdiction are subject to long term orders that expire when the child turns 18. Between the filing of an initiating care application and the expiry or rescission of a care order there may be a significant number of applications and appeals, spanning many years. A Court cannot review each of those decisions to determine a global costs order upon the rescission of a care order. 12. Particular applications address discrete issues that require judicial resolution. The discrete issue for resolution was whether the s 90 criteria was satisfied such that the safety, welfare and well-being of the girls was achieved through a rescission of the care order. 13. A costs order in 'care proceedings' may only be sought in relation to the costs of proceedings that were initiated by the Mother's s 86 application, filed on 25 March 2022. 14. Under the common law, a successful party has a 'reasonable expectation' of being awarded costs against an unsuccessful party' (Oshlack v Richmond River Council [1998] HCA 11 at [134]). That principle is limited by s 88 of the Act. The Mother must satisfy the Court that there are exceptional circumstances that justify the Court making an order for costs. 15. The Father's s 90 application was withdrawn. There is no recourse to costs for an applicant who is unsuccessful or withdraws an application. Exceptional circumstances that justify the Court making an order for costs 1. The Secretary submits that there are no exceptional circumstances, and the Mother's submissions alleging professional misconduct are not matters to be determined pursuant to s 88 of the Act. 2. The Mother submits there are nine grounds that constitute exceptional circumstances. Ground 1: The Mother had 'no choice but to pay for her own legal representation' 1. The Mother submits that she did not qualify for Legal Aid and therefore had to fund the entirety of the proceedings herself. Ground 2: The girls have suffered as a result of the Mother spending money on the proceedings 1. The Mother had to remove her children from private school as she could not afford to pay for schooling and these proceedings. Ground 3: The girls were removed for an improper purpose 1. The Mother submits that the Department did not have 'reasonable grounds for believing' that the girls were at risk of serious harm (s 233(1)(a)), and instead applied for the search warrant to remove the girls and investigate the unsubstantiated risk of harm reports regarding the Father. 2. The Mother submits that if the Department required further evidence to determine whether the girls were at risk of harm they could not have: 1. had reasonable grounds for believing the children were at risk of serious harm; or 2. considered removal 'necessary' to protect the children from a risk of serious harm (s 36(1)(c)). Ground 4: The Department improperly obtained the warrant that was used to remove the girls 1. The Mother submits that the Department did not comply with s 233(2) as they did not consider whether 'the making of an apprehended violence order would be sufficient to protect the girls'. Ground 5: The removal of the girls was inappropriate and intrusive 1. The Mother submits that police dressed in riot attire, broke into their home and refused to show the Mother or Father their warrant as required under s 69 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Ground 6: The Initiating Application was misleading 1. The Mother submits that the Department's initiating application referred to unsubstantiated ROSH reports about the Father but failed to include the risk and safety assessments conducted by the Department. Ground 7: Appropriate measures were not taken by the Department before commencing Children's Court proceedings 1. The Mother submits that the Department breached their obligation under s 37(1A) of the Act to 'offer alternative dispute resolution processes to the family of the child or young person before seeking care orders from the Children's Court'. Ground 8: The Department's application for a s 256A order 'was a blatant abuse of process' 1. The Mother submits there was 'no legitimate basis for the Secretary to seek an order under s 256A'. Ground 9: The Department maintained a baseless allegation of sexual misconduct 1. The Mother submits that the Department continued to assert that the Father posed a risk of sexual harm to the girls, even after this allegation was investigated by a caseworker. The submissions regarding the s 90 application 1. As previously determined, the Mother's application for costs is limited to costs incurred in the proceedings from 25 March 2022 when the mother filed a s 86 contact application that was amended to the successful s 90 application. 2. The grounds set out by the Mother above fail to specifically address the relevant proceedings. The Mother has not presented grounds addressing the exceptional circumstances in the s 86 / s 90 proceedings to justify a costs order. 3. In her affidavit dated 13 October 2023, the Mother addresses the legal and administrative costs she incurred from January 2023. Presumably, the Mother seeks to rely on Ground 1, in that she was unable to access Legal Aid so has independently funded the s 86 / s 90 proceedings, and Ground 2, that her legal expenses have impacted her financial capacity to support her daughters. 4. In Department of Community Services v SM and MM [2008] NSWDC 68, Judge Garling found that the respondent parents not being entitled to Legal Aid and having to pay their own legal costs as a result of the Department's appeal were facts relevant to the consideration of exceptional circumstances. 5. The Mother's application for contact, then for sole parental responsibility, then for a rescission of the order was not supported by the Department. The rescission of the order would not have occurred without the Mother's application. The Children's Court is not a consent jurisdiction and the order would not have been rescinded without the Court hearing evidence regarding the risk of harm to the girls and the options that may mitigate any risk. 6. I adopt Children's Magistrate Hayes' summary of the law on exceptional circumstances in Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11. Litigation in care proceedings should not ordinarily be the subject of costs orders. Section 88 protects aspects of the rights of a successful party to recover litigation costs but those costs need to be balanced against the public interest in litigation that is undertaken to provide for the safety, welfare and well-being of children. 7. Children's Magistrate Hayes considered the term 'exceptional' at [104] and stated: The court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision: see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [78] ('Project Blue Sky'). Grammatical Meaning of 'Exceptional' The Macquarie Dictionary defines "exceptional" as an exception or unusual instance; unusual; extraordinary. Exceptional: may be quantitative or qualitative: see R v Buckland [2000] 1 All ER 907 (at 1268; 912-913) can include a single exceptional matter, or a combination of exceptional factors, or a combination of ordinary factors when taken together are seen as exceptional. Ho v Professional Services Review Committee No 295 [2007] FCA 388 1. At [113] Children's Magistrate Hayes stated: In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: see R v Buckland [2000] 1 All ER 907 at 912–913. Therefore, in determining whether exceptional circumstances exist or not within the meaning of s 88 of the Act consideration is given to the statutory scheme for child protection. Firstly, proceedings that relate to the welfare of a child are not to be regarded as normal adversary litigation: S v Minister for Youth & Community Services (1986) 10 FamLR 849 per Powell J. Secondly, as a matter of broad public policy, the litigation of childcare issues should not ordinarily be the subject of costs orders that could potentially inhibit public interest litigation concerning the welfare and well-being of children: see Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477 per Levy J SC at 9. Thirdly, at a micro level: the policy basis behind the restriction on the power to award costs is based in the notion that parties should have as full an opportunity to be heard as is reasonably possible, and not be deterred from participating by adverse pecuniary consequences - the safety, welfare and well-being of the child being the paramount concern": see Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) NSWChC 2, His Honour Judge Johnstone, the President of the Children's Court, at [24]. Fourthly, there is not a prohibition on costs. Arguably, there is recognition that adverse costs orders play an important role in litigation in that the very possibility of an adverse costs order ought to focus the mind…: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [68] per McHugh J (Oshlack). Finally, s 88 retains some protection of a successful party's common law rights. 1. The management of the proceedings has been impacted and delayed by the conduct of the Mother and Father. The Mother and Father have been separately and jointly represented. The Mother's position has not always accorded with the Father's position. The Mother has changed positions. Both parties have sought adjournments to access legal representation and to subpoena and file material. Neither has adequately focused on the statutory powers allocated to Children's Court judicial officers with respect to the criteria that must be considered in resolving care applications. 2. A substantial amount of material has been filed by the Mother and Father in the care proceedings and in the costs application. Filing directions have been routinely disregarded. The court has received frequent correspondence every day and at all hours of the day seeking to file additional evidence, issue a subpoena or access an urgent court listing. Further correspondence was sent to my associate at 3:45 PM the day before this judgment was delivered with numerous annexures. 3. Since the girls were assumed into care, the Secretary has maintained a concern about the behaviour of the Father and the likely risk of physical or psychological harm to the girls. The evidence provides ample support for a finding that the Father presents a risk of harm to the girls. The safety, welfare and well-being of the girls can only be achieved through a judicial decision about whether the Father presents an unacceptable risk of harm to the girls. 4. The evidence of the Mother and Jessica Pratley led to a consideration by the Court and parties about how to give effect to the wishes of the girls without exposing them to an unacceptable risk of harm. Following discussions, the Secretary indicated there was no opposition to a rescission of the care orders. In applying the criteria pursuant to s 90, the Court allocated significant weight to the age and wishes of the girls, their attachment to their parents, the protective capacity of their Mother and the psychological harm to the family caused by ongoing oversight or intervention. 5. This is an exceptional case but there are no exceptional circumstances that justify the court making a costs order in favour of the Mother. Although the Mother has funded her own legal representation, she has expended substantial funds seeking to right perceived wrongs and litigate matters that fall outside the scope of the courts statutory powers. 6. Intervention and litigation have taken an emotional and financial toll on the family. The girls are no longer subject to care orders. I hope the parents take this opportunity to provide the girls with the attention and support they need. 7. The application for costs is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2023