Children's Court New South Wales Medium Neutral Citation: The Secretary, Department of Family and Community Services and Tyson Tanner (Costs) [2017] NSWChC 1 Hearing dates: 23 and 24 November 2016 Decision date: 30 March 2017 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: The Secretary, Department of Family and Community Services is to pay the costs of the Maternal Grandparents as agreed or as assessed Catchwords: Costs Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: BS v Minister for Department of Community Services [2009] Children's Law News (March) Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Commonwealth of Australia v Gretton [2008] NSWCA 117 Department of Community Services v SM and MM [2008] NSWDC 68 Joy Alleyne as independent legal representative for Knight v Clifton [1971] Ch 700 LC v Department of Community Services (No 2) [2009] NSWDC 171 Oshlack v Richmond River Council (1998) 193 CLR 72 Secretary, Department of Community Services and the Knoll Children [2014] NSWChC6 SP v Department of Community Services [2006] NSWDC 168 R v Kelly (Edward) [2001] 1 QB 198 The Secretary, Department of Community Services (NSW) and the Knoll Children (Costs) [2015] NSWChC2 Williams v Lewer [1974] 2 NSWLR 91 XX v Nationwide News Pty Ltd [2010] NSWSC 147 Category: Principal judgment Parties: The Maternal Grandparents (applicants) The Secretary, Department of Family and Community Services (respondent) Representation: Ms Flintoff, Counsel for the Secretary Mr Moutasallem, Counsel for the Maternal Grandparents Mr Squires, Independent Legal Representative for the child File Number(s): 8/2015 Publication restriction: None. Pseudonyms have been used in order to anonymise the child and parties Judgment Background 1. Tyson Tanner was born in 2007 to Patty Evans and Gary Tanner. 2. On 14 September 2007 Tyson was removed from the care of his mother and placed with a foster carer. 3. An application for a care order was filed with the Children's Court on 17 September 2007. 4. At age 7 months, Tyson was placed with his maternal grandparents. 5. On 30 June 2008 a final order was made placing Tyson in the parental responsibility of the Minister until he turns 18. 6. Tyson's placement with his maternal grandparents was maintained until around November 2015. During this period Tyson had ongoing contact with his mother, father and paternal grandmother. 7. On 30 April 2012 the FaCS' psychologist, Melanie Haile provided a consultation to the then caseworker, Ms Morrison. 8. Ms Morrison wrote that: "There is a current AAE matter being investigated for allegations of Tyson being smacked by the maternal grandparents. In the interview with Tyson, he stated that he has been smacked by them, his father, and the father's mother." 1. In that consultation the caseworker asked the psychologist for advice around the frequency of contact and the suitability of a father who has Asperger's having unsupervised contact with Tyson and how the Asperger's may affect Mr Tanner's ability to parent and protect Tyson. The psychologist wrote: "Tyson has also disclosed that Gary has used physical punishment as a form of discipline and it may be difficult for Gary to understand that this is not acceptable, particularly if this is how he was disciplined and if his mother is also disciplining Tyson in this way. Gary would benefit from attending a parenting course such as Triple P to learn effective non-physical forms of discipline and how (sic) implement these in a consistent manner. The concern for Tyson is also the high frequency that he has contact with his father and the impact that this may have on his attachment and security with his maternal grandparents and this needs to be taken into consideration when making decisions around contact. …It is recommended that the Department give consideration to amending Tyson's Contact Orders through the Court to take into account his attachment needs and his changing developmental needs. It is recommended that the caseworker consider the possible risks associated with Asperger Syndrome and parenting outlined in this consult and the implications this may have for Tyson before making the decision for Tyson to have unsupervised contact with his father." 1. At the time this report was written the father was having fortnightly overnight contact supervised by the paternal grandmother. 2. In the Secretary's chronology produced under subpoena from the Independent Legal Representative, it states that on 2 April 2012: "Tyson interviewed by Caseworkers. He confirmed that he had been smacked by his Ma and Pa with their hands on his bottom – the last time when he was turning 4. He also stated that his Daddy smacked him on the bottom really hard, and that his Nanny did one day." [The Nanny to which Tyson refers is his paternal grandmother]. 1. The following entry in the same chronology was 27 April 2012 as follows: "SAS2 completed in relation to the report of 8/09/11 (Tyson's disclosure of being smacked). It was concluded that this was a case of inappropriate discipline and that Tyson was a very well adjusted and happy little boy who was doing well in his placement." 1. There was a further report made in January 2013 where one allegation was not sustained and the allegation of smacking did not meet the statutory definition of reportable conduct. 2. The reviews of the care provided by the maternal grandparents to Tyson which were produced prior to these proceedings were overwhelmingly positive across all aspects of care – physical, social, contact, emotional and education. 3. An example of this can be found in the Authorised Carer Review undertaken by the Secretary in late May 2014 where there are only exceedingly positive comments and reports of the care the maternal grandparents were providing Tyson. Some of the comments included: * The maternal grandparents provide Tyson with an environment that is free from abuse * They are both doing a fantastic job with Tyson * They continue to maintain Tyson in a stable and supportive environment where all his needs are being met. They encourage Tyson to explore his interests and continue his education. They provide him with support to maintain contact with his family and friends * The maternal grandparents are aware that smacking is not an appropriate form of discipline and they have stated that they no longer use this form of discipline with Tyson 1. In March 2015 in a report relating to a Home Visit for Children in Out-of- Home Care Ms Roe, caseworker wrote that the maternal grandmother did not require any carer training. 2. On 17 September 2015 the father filed an application to rescind the care order, seeking an order that parental responsibility be transferred to him. 3. On 21 September 2015 Ms Roe made a file note of her visit to Tyson at the home of the maternal grandparents. In that note she records that she told the maternal grandmother that the Secretary would take a neutral position when it came to the s 90 proceedings in court. 4. The Secretary obviously changed his mind on this point because in a FaCS' record of a meeting between the maternal grandparents and the Secretary's officers, Ms Birkett, Ms Roe and Ms Wilcher of 19 November 2015 the Secretary advised the maternal grandparents that the Secretary would be supporting the father to have Tyson returned to his care and will be increasing the time Tyson spends with his father beginning in December. The reason the Secretary gave to the maternal grandparents for the increase in contact was that "Gary has put in his application into Court and we need Gary to demonstrate his ability to care for Tyson and give him the opportunity to show he can do this." 5. The maternal grandmother questioned why the new case plan was being implemented before the Court proceedings had concluded and Ms Birkett replied "Because we have supported Gary's application." 6. When the maternal grandfather asked "what makes you think we are doing the wrong thing?" Ms Birkett responded "we have multiple issues. Not only the care for Tyson but the relationship with us as an organisation, the relationship between the maternal grandparents together and their relationships with each other." Ms Birkett acknowledged the difference of opinion regarding the maternal grandparent's relationship and added that physical discipline in the home is a further issue. 7. The maternal grandparents were also told that as a result of the changes proposed by the Secretary Tyson's relationship with them "won't change." 8. On 9 October 2015 Ms Roe visited the father and Tyson at his father's home (he lives with the paternal grandmother). 9. Ms Roe wrote in her notes of that visit that: "When Dad told him (Tyson) I was coming he told Dad he did not want to live with him. He had never said this before and when I asked him if he remembered what we talked about before and if he wanted to talk some more about it, he said no." 1. On 12 October 2015 the maternal grandparents filed an application pursuant to s 90 of the Act seeking an order of parental responsibility in their favour. 2. On 21 October 2015 Ms Roe, caseworker for Family and Community Services, filed her first affidavit in these proceedings. In that affidavit she states that the Secretary supports the father's application for restoration. 3. On 6 November 2015 Ms Roe completed a referral to the school counsellor. She said it was "to provide emotional support for Tyson." The referral was rejected on the basis that Tyson was considered to be doing well at school. 4. On 19 November 2015 Tyson's contact with his father was increased by the Secretary. The letter outlining the increased contact to him dated 19 November 2015 contains the following: "As there is a current s 90 application before the Court, Community Services is increasing contact between yourself and Tyson to demonstrate that you can be (sic) meet Tyson's needs on a full time basis… From 30 November, Gary is to have Tyson an extra two days a week, Mondays and Tuesdays… From 4 January, Tyson is to spend alternate weeks between yourself and his maternal grandparents, please see enclosed calendar. Community Services will re-assess the contact at the end of January." 1. At the review Ms Roe reports the following conversation she had with Tyson: "I asked Tyson if he liked it at dads home and he said 'yes'. I asked him what the best thing about been (sic) at dads was, Tyson said Dad. I asked Tyson if he would like to continue to spend more time with dad and he said he has to go back to school. I asked him if he would like to stay with dad and have dad take him to school and he said no he was going back to Ma and Pa after this week. He said he wanted to see dad on the weekends, but he had been told that after this week he would be going back to Ma and Pa. I asked him what he would like to do and he did not answer." 1. On 15 December 2015 Mr Bembrick swore an affidavit in these proceedings. Mr Bembrick is a social worker at Legal Aid and he sets out impressive qualifications and thirty years' experience. At the request of Mr Squires, Tyson's Independent Legal Representative, Mr Bembrick met privately with Tyson at his office in order to evaluate Tyson's wishes regarding his future care arrangements following Mr Tanner's s 90 application. 2. Mr Bembrick stated that, after he had built up a rapport with Tyson, he asked him how he felt about Mr Tanner's idea of Tyson going to live with him and that, without hesitation, Tyson responded: "Bad, because I don't want anything to change. I want it to stay. I'd miss Ma and Pa, Mate and Tiger (the pet dog and cat)." 1. Tyson told Mr Bembrick he was "10 out of 10 certain" he wanted to stay with his grandmother and if told by the Court he had to return to his father he would feel "sad." 2. Mr Bembrick provided the following summary: "Tyson told me his wishes are to continue to reside with his maternal grandparents. I felt from his responses he has a strong attachment to his maternal grandparents, particularly his maternal grandmother, and has held this position for some time. This is not to say he does not love his mother and father and enjoys the time he spends with them. In my view he would experience a disruption of the current care arrangement at this stage of his life as a significant loss. The consistency and spontaneity of his responses suggested strongly that his views were his own and he had not been unduly influenced in his responses to questions." 1. On 30 March 2016 the report of the Children's Court Clinic was distributed to the parties it recommended that Tyson remain living with his maternal grandparents, with regular contact with his parents and the Clinician formed the view the maternal grandparents should have sole parental responsibility. "[Tyson]…gave no impression to the Clinician that the maternal grandparents have attempted to align him to their way of thinking whilst he clearly felt comfortable in how the maternal grandparents have facilitated his time with each of his parents. Tyson has spent the overwhelming part of his life living with the maternal grandparents, particularly in critical phases of his childhood development. There is little doubt that by removing Tyson from the primary care of his maternal grandparents, without any significant rationale, other than restoring him to his father's primary care is likely to have a major emotional and psychological disturbance in Tyson's emotional wellbeing. This is particularly the case in the context that Tyson seems to have been cared for in a nurtured manner by the maternal grandparents, whilst it also is significant that the maternal grandparents have been diligent in supporting Tyson's relationship with each of his biological parents, and have not in any way attempted to alienate these relationships. To affect a change in Tyson's long term living arrangements would need to be based on some significant rationale, whereby an assessment is made that Tyson would be at risk of significant harm if he remained in the primary care of the maternal grandparents. This is not the case in these proceedings. …Tyson spoke openly and confidently about his relationship with his maternal grandparents, while he clearly expressed doubt as to how a weekabout living arrangement could impact upon him. Tyson's expressed confidence about his relationship with his maternal grandparents appears to have allowed him to express to his father that he wishes to remain primarily living in the maternal grandparents care. There is no evidence before the Clinician to suggest that Tyson has been abused in any manner whilst in the maternal grandparents' long term care, with Tyson being able to validate to the Clinician his feelings of safety in living them. …Other than the Department of Family and Community Services seemingly of the desire to place Tyson in the primary care of his father, there appears to be little rationale as to why a week about arrangement was commenced for Tyson with his father and the maternal grandparents in January of this year…." 1. This regime of alternate weeks with the father and the maternal grandparents was introduced as planned by the Secretary. The alternate weeks were maintained despite the views of the Children's Court Clinic Clinician, the opposition of the maternal grandparents and the Independent Legal Representative and despite Tyson's wishes as expressed to Mr Bembrick and throughout the proceedings to Mr Squires, his Independent Legal Representative. 2. When the matter was raised during a mention in court, the Secretary agreed he would not proceed further down the path to restoration whilst the proceedings in the Children's Court were pending. 3. On 25 May 2016 the Secretary filed an affidavit reporting: * Ongoing difficulties between the maternal grandparents and FaCS * That the maternal grandparents were told that their ongoing refusal to complete their medical reviews and comply with the Code of Conduct could result in their carer authorisation being cancelled and Tyson being removed * FaCS received reports alleging Tyson has been exposed to domestic violence between the maternal grandparents * The Secretary has raised with the maternal grandparents a concern for the lack of Tyson's participation in sport and recreational activities * The maternal grandparents have been advised that the removal of personal objects from a child as a form of discipline is contrary to FaCS policies. The maternal grandparents have stated that they would continue to use parenting techniques they wished to and refused to undertake carer training. 1. On 27 May 2016 the Secretary filed a Care Plan which: * Assessed there was a realistic possibility of restoration to the father and proposed joint parental responsibility to both parents with a 12 month supervision order * Proposed contact to maternal grandparents at a minimum 12 times per year when Tyson was with his mother for contact. * Represented Mr Tanner as Tyson's primary carer Tyson's time with his father has increased since first entering care. Mr Tanner speaks fondly of Tyson and the time they spend together. With the support of the paternal grandmother and FaCS, he has transitioned to being Tyson's primary carer in November 2015. * States that the maternal grandmother has unreasonably denied past requests in relation to contact arrangements and activities for Tyson with his father * Presents Tyson as being at risk of psychological and physical harm from his placement with his maternal grandparents. The Care Plan states: FaCS have concerns for the parenting capacity of the maternal grandparents given their use of physical discipline * Alleges that the maternal grandparents have pressured Tyson into saying he wishes to live with them. Tyson has been unduly pressured to express an opinion favourable to the maternal grandparents with records indicating the maternal grandmother has pressured Tyson to tell FaCS he wanted to live with them. 1. In a Child Protection Referral Form to NSW Health CPCS services dated 14 September 2016 signed by Ms Roe and Ms Birkett in which the counselling services of PANOC were requested for Tyson for a "smooth transition and return to dads primary care" the following risk factors were stated by the Secretary: "Tyson is currently transitioning to Dads care, his mgp are looking for PR, Tyson is court (sic) in the middle of his MGP hating his PGM and fighting with his father Tyson feels that he loves all his family and cannot speak freely about his wishes. Tyson says he wants to stay with his grandparents because that is all he knows, we believe that Tyson had been coached and will not give his own wishes. Tyson is very happy to be with Dad… " 1. The matter was set down for final hearing for 3 days from 23 November 2016. At the commencement of the hearing the father was seeking an order of sole parental responsibility in his favour. The Secretary supported the father. The maternal grandparents were seeking an order of parental responsibility in their favour. Both the mother and the Independent Legal Representative supported the maternal grandparents' case. 2. The Children's Court Clinician gave compelling evidence in favour of the outcome sought by the maternal grandparents. He did not resile or deviate at all from the opinion he expressed in his written report which was distributed to the parties in March 2016. 3. At the conclusion of the Clinician's evidence the parties sought some time to consider that evidence and both the father and the Secretary conceded that Tyson should remain living with his maternal grandparents and continue to have weekend/school holiday contact with each of his parents. All parties consented to an order allocating parenting responsibility to the maternal grandparents until Tyson attains the age of 18 years. 4. At the final hearing I made a finding that it was in Tyson's best interest that he remain living with his maternal grandparents and I made an order, with the consent of all parties, of joint parental responsibility of Tyson to his maternal grandparents until he attains the age of 18. The application for costs 1. The maternal grandparents applied for indemnity costs as against the Secretary. 2. It is not in issue that the maternal grandparents were not in receipt of Legal Aid for these proceedings and that the maternal grandparents' income is derived from the modest wage of the maternal grandfather. 3. The Court was told that the maternal grandparents had to draw on their mortgage to fund these legal proceedings and the cost was in the vicinity of $25,000. 4. The Secretary opposed the application for costs. 5. Both parties made oral submissions on the issue of costs. Unfortunately there is no transcript of those submissions as the Court's recording equipment failed. The Secretary later supplemented his oral submissions with written submissions. The submissions of the maternal grandparents 1. Section 88 of Children and Young Persons (Care and Protection) Act 1998 sets a high bar for an award of costs in this jurisdiction but, Counsel submits in this case, the Secretary's conduct is exceptional as contemplated by s 88, particularly because the conduct fell well short of the proper conduct of a model litigant. 2. In the maternal grandparent's submission the Secretary's decision-making in this case was negligent, ad hoc, lacked insight into the child's best interest and was, because it involved the relentless pursuit of the outcome of restoration, unnecessarily belligerent. 3. The following factors taken alone or together lead to the conclusion that this is an exceptional case: * The case was unduly prolonged and there was gross negligence on the part of the Secretary. The Secretary pursued restoration despite the report of the Children's Court Clinic served in March 2016 and the report of Mr Bembrick. * The Children's Court Clinic Clinician was cross-examined only very briefly by the Secretary before he, the Secretary capitulated. Why did the Secretary not concede earlier that restoration to the father was not in the best interest of the child? * The evidence was so overwhelming; no amount of cross-examination could have led to a different outcome. * The unilateral change made by the Secretary to Tyson's living arrangements was highly irregular and 'put the cart before the horse.' The decision making was ad hoc, did not have regard to the psychological impact on Tyson and was undertaken without regard to his best interests. This was not what is expected of a model litigant. * In changing Tyson's placement the Secretary was acting without the sanction of the Court and acting contrary to what is expected as a model litigant. * The Secretary sought to engineer the outcome the Secretary was seeking. The maternal grandparents argue that the referral to PANOC was an attempt to gather evidence of the child's wishes to counter the evidence of the Children's Court Clinic and the instructions of Tyson to his independent legal representative and the information he gave to Mr Bembrick. They say further that the referral to the school counsellor was 'unbecoming' as it was designed to obtain evidence to contradict Tyson's expressed views and wishes as expressed to the Clinician, Mr Bembrick and the Independent Legal Representative. * The Secretary inappropriately in the material included baseless allegations against the maternal grandparents by characterising them as posing a risk to the child, including allegations of physical abuse and allegations of them inappropriately attempting to influence Tyson's views. This was so yet from when he was initially placed and all the way through to 2014 FaCS was supporting the placement. * The Secretary improperly made allegations of physical abuse in the Care Plan which were baseless and contrary to FaCS own evidence and the maternal grandmother's evidence. The reporting of physical harm in the Care Plan was unfair in light of the evidence before the Court. The allegations of smacking were held by the Secretary himself to be trivial and not reportable and including them in the Care Plan was misleading. The most offensive item in the Care Plan was the allegation that the maternal grandmother abused the child by hitting him with a broom. * The information contained in the Care Plan was selective in order to bolster the Secretary's case. When there was the allegation of smacking that allegation included an allegation that Mr Tanner smacked Tyson. Yet there was no mention of this in the Care Plan. 1. The maternal grandparents submit that the conduct of the Secretary was unusual and exceptional circumstances are made out and that during the entire proceedings the Secretary supported the father's case and this should never have been done as the father's case had no prospect of success. 2. The Secretary was not the model litigant. The maternal grandparents were put to more expense because of this and had to answer to allegations made. This made the litigation more complex. The Secretary's Submission 1. The Secretary's oral submissions included that: * The Secretary had not prolonged the proceedings and nor can his conduct be said to be improper. * There was a breakdown of relationships between all the parties in this case. * The Secretary is only involved in these proceedings as it holds parental responsibility. The application was made by the father. All the Secretary did was formed a view that he should support the father. * The criticism of the Secretary that he did not cross-examine the witnesses at any length is unfounded as the Secretary went last in cross-examination and it was unnecessary for the Secretary to cross-examine when the grounds had already been covered. It would in fact have been improper in the circumstances to extend the cross-examination. * The caseworker was entitled to come to the conclusion she did and there should not be a costs order due to her decision being contrary to the decision of the Court. * The Secretary was entitled to test the evidence of the Clinician * If there was a mistake or mistakes in the Care Plan this was not a determining factor in the proceedings and not a reason to make a costs order against the Secretary. It is incorrect to characterise the Care Plan as unfair when read in isolation because the Care Plan will not be read by the Court in isolation, it forms part of the whole file. * The maternal grandparents were no longer authorised carers so this is not a matter where the Secretary could have retained parental responsibility and placed Tyson in the grandparents' care. * Also the maternal grandparents, if unhappy with the Secretary's decision were not compelled to bring an application to the Children's Court; they could for example have lodged an appeal with the NSW Civil and Administrative Tribunal. ('NCAT') 1. The Secretary's written submissions included: * The leading authority on costs in the Children's Court's care jurisdiction is SP v Department of Community Services [2006] NSWDC 168 ('SP'). The Secretary, Department of Family and Community Services and the Knoll Children (Costs) [2015] NSWChC2 is also relevant as is R v Kelly (Edward) [2001] 1 QB 198; which provides: "Exceptional circumstances are out of the ordinary course or unusual or special or uncommon. They need not be unique or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered." * None of the criteria set out in SP to justify the making of a costs order are made out on the facts of this case. * The facts of this case can be distinguished from the Knoll case because it was the maternal grandparents who filed the application and the Secretary has been transparent in his position. All directions have been complied with by the Secretary. * These proceedings were very typical of s 90 proceedings and the maternal grandparents have failed to show there is anything exceptional to justify an award of costs. * As there were two competing applications for orders (the father's application and the maternal grandparent's application) the Secretary was obliged to complete assessments and make recommendations. The Secretary recommended restoration and then invited the Court to decide whether to accept that recommendation. The Children's Court is not a consent jurisdiction and it was up to the Court to make findings. * The Secretary is obliged to consider the permanent placement principles contained in s 10A which require consideration of restoration as the first option. It is only if it is not practicable or in the best interest of the child to be restored that any other option should be considered. (I interpret this as a submission that, in making his recommendation for restoration the Secretary was simply complying with s 10A.) * The Secretary says in his submission that "the thrust of the maternal grandparent's application relates to a decision by the Secretary to increase the amount of contact Tyson was having with his Father, a dislike for the evidence filed, and how the Secretary's legal representative conducted the hearing." * The Secretary submits that the argument about contact is somewhat flawed because the final orders required a minimum level of contact, contact is important and forms part of permanency planning. * The Secretary was a party because the Minister held parental responsibility; the Secretary was not an applicant. * The Court had two competing applications which required it to run the hearing regardless of the position the Secretary took. * The length of the hearing was not something the Secretary had any control over. The Secretary complied with all his obligations, procedurally and in complying with the legislation. * Up until leave was given the proceedings were fundamentally between the maternal grandparents and the Court. The Secretary's actions to that point should not weigh on a costs decision. * The Minister held parental responsibility and was legally able to implement a transition. The Law 1. Section 88 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') provides that the Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it doing so. 2. In the case of Department of Community Services v. SM and MM [2008] NSWDC 68, Garling DCJ ordered costs against the Department after making a finding of exceptional circumstances. In that case the Children's Court ordered restoration and the Department appealed. 3. His Honour dismissed the appeal and found exceptional circumstances as follows: "8 It is argued on behalf of the appellant that the fact that the respondents to the appeal had to pay their legal costs was not an exceptional circumstance and that this was simply an appeal which was dealt with by the Court and there were no exceptional circumstances. 9 I disagree. I believe that there are exceptional circumstances for making an order for costs. Those exceptional circumstances are:- (1)The appeal had no merit. (2)The Magistrate made the only reasonable order available. (3)There were no grounds to seek an appeal from that order. There was no additional evidence which may have caused this Court to reach a different decision from the Magistrate. (4)This appeal related to a 5 year old child. The Department's position was that that child should be put in care until he attained 18 years of age and be removed from his parents. The parents had every right and justification in resisting such an application and, indeed, had to. 10 For some reason of which I am not aware they were not entitled to Legal Aid. The Department, of course, fund their appeal. The child is represented and those costs are funded. However, the parents, who really had to appear in Court and be legally represented, were not funded and had to meet their legal expenses. In the majority of these appeals all parties appear to be funded. I do not agree that the fact that these parents had to pay their legal costs as a result of the Department's appeal is not relevant to the consideration of exceptional circumstances. I believe it is very relevant. 11 I have concluded, for all those reasons, that the Department should pay the costs of the parents…" 1. In SP v Department of Community Services [2006] NSWDC 168, Rein DCJ set out the following matters which he considered would or at least arguably might fall within the description of exceptional circumstances for the purposes of s 88 of the Act: (1) Deliberate misleading of the court or opponents (2) Other misconduct or wrongful conduct (3) Contumelious disregard of orders of the court for the principles set out in s93 of the Act (4) The raising of baseless allegations for which the party had no reasonable belief as to their existence (5) The raising of false issues that bear no relation to the facts or are contrary to the clearly established case law (6) Maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions (7) Gross negligence in the conduct of a case at least where that has led to an extensive waste of the court's time and that of other parties (8) Where the proceedings involve a blatant abuse of process and/or are both mischievous and misconceived 1. In BS v Minister for Department of Community Services & Ors [2009] Children's Law News (March) ('BS') Counsel for the Director-General appeared to submit that in order to make a finding of exceptional circumstances as per s 88, there must be conduct akin to actual misconduct or gross negligence as raised in SP. His Honour Judge Robison rejected this submission and concluded that the list in SP is not an exhaustive list and all relevant circumstances should be considered. 2. His Honour considered the lengthy hearing before him was a relevant though not solely determinative factor. He made no criticism of the advocate or the way he conducted the proceedings. He instead saw the problem as the entrenched immoveable view from the very early stage with the action the Department took in relation to the child. The very early stage was before the appeal. 3. Another factor his Honour seems to have taken into consideration was that it was not a case where a fair minded observer would have thought "could have gone either way". 4. His Honour concluded that much of the relevant evidence was provided by the mother but the Department should have taken a greater role in obtaining this relevant material. He found that given the clear statutory obligations on the part of the Director-General there is direct responsibility of the part of the Director-General to ensure that all relevant evidence is presented to the Court even if it does not assist the Director-General's case. In this case it was the mother that had to bring that evidence and this was a legitimate matter taken into account in the costs application. 5. In his Honour's view the Department had an entrenched attitude and unreasonably rejected the expert evidence without any expert evidence in contradiction. 6. His Honour found the Secretary's case was "really untenable given the weight of the expert evidence, the expert evidence which the Department refused to accept during the course of the lengthy hearing before me and this is particularly in the context of the issue of restoration and attachment. There was no expert evidence provided by the Department to directly contradict the opinions and findings of the experts…" 7. His Honour said he found it extraordinary that the Department did not accept the opinion of its own expert but offered no expert with any different opinion and stated: "[19] The Director General has a duty to assist the court. There are clear statutory obligations on the part of the Director General given the objects of the Act of course to ensure that the interests of the child are protected and that the interests are paramount. Hand in hand with that obligation is a direct responsibility on the part of the Director General to ensure that all relevant evidence is presented to the court, even if it does not assist the Director General's case. But it was up to the plaintiff to present much of this and that, in my view, is a legitimate matter to take into account when considering the nature of the relief sought in this costs application. [39] I have come to the view that this is a case which warrants an order for costs under s88. This case did not proceed expeditiously as it could have, given the entrenched view of the Department, an immovable view in the face of powerful evidence adduced by the plaintiff…" 1. In Joy Alleyne as independent legal representative for LC v Department of Community Services (No2) [2009] NSWDC 171, Judge Goldring refused costs against the Secretary, it seems on an application by the mother for rescission or variation which was opposed by the Department. 2. The application for costs was dismissed on the basis that there was nothing exceptional about this case. It was an appeal, ordinary in nature where the Secretary had reached a different conclusion on the evidence. It was not a case where the Secretary's position had no merit. 3. In the matter of XX v Nationwide News Pty Ltd [2010] NSWDC 147, ('XX') Gibson DCJ set out the factors which in his view were capable of amounting to exceptional circumstances as: (a) This was an application that the plaintiffs "had to" bring (b) There were breaches of an implied undertaking which would be capable of amounting to "wrongful conduct" (as considered in SP) (c) There was disregard for the principles set out in the Act. In SP there is a reference at (3) to section 93 of the Act. There is no reason why contumelious disregard for this provision is more serious than, for example, contumelious disregard to the principles in section 9 of the Act. 1. In the Secretary, Department of Community Services and the Knoll Children (Costs) [2015] NSWChC2, ('the Knoll Children') Judge Johnstone, President of the Children's Court ordered costs. In his judgment he helpfully set out some general propositions when considering the issue of costs in care proceedings. He stated that: "The discretion to award costs must be exercised judicially and "according the rules of reason and justice not according to private opinion …. or even benevolence …or sympathy." Williams v Lewer [1974] 2 NSWLR 91 at 95, and is not to be exercised arbitrarily or capriciously, or on no grounds at all….The underlying idea is of fairness, having regard to what the court considers to be the responsibility of each party for the costs incurred: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]. The court may have regard to the particular circumstances of the case, including the evidence adduced, the conduct of the parties and the ultimate result: Knight v Clifton [1971] Ch 700. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made…" 1. In the Knoll Children the grandmother brought an application for a contact order for her grandchildren who were in the parental responsibility of the Minister. The carers were joined as parties. The grandmother's application was dismissed. The carers made an application for costs against the grandmother and the Secretary. The costs application against the grandmother was dismissed but it succeeded as against the Secretary. In deciding the Secretary should pay costs the President accepted that the Secretary had appropriately conducted himself during the hearing. The President's concerns arose from the conduct of the Department in some of its dealings with the carers. The President stated: "[50] The issue is, why did it come to this? Why was there a need for separate representation of the Carers? Specifically, what was it that dictated a need for the Carers to incur that cost? Given that parental responsibility for the children had been allocated to the Minister, what was it that required the Carers to become directly involved in the proceedings? Did they in fact need separate representation? Why was it not appropriate for the Department to present their views to the Court? It seems to me that the answer to these questions informs the question of costs." Decision 1. There is a heavy burden upon a party seeking costs in care proceedings in order to establish "exceptional circumstances." 2. In my view this case is a case where exceptional circumstances, as contemplated by s 88 of the Act, exist. I have reached this conclusion for the following reasons: (i) The Secretary's position had no merit and the Court made the only reasonable order available. This is not a case that could have gone either way. At the time of the hearing Tyson was 9 years old. The evidence filed in these proceedings, as opposed to the expressed concerns and suspicions and unsubstantiated reports, overwhelmingly attest to an excellent level of care that Tyson has received from his maternal grandparents since he was placed with them at age 7 months. In this case there was overwhelming and compelling evidence that Tyson was thriving in his placement with his maternal grandparents. He had been living with his grandparents for nearly the whole of his life, he has a strong attachment to them and removing him from them would be detrimental to his welfare. (The Clinician's evidence being that "there is little doubt that by removing Tyson form the primary care of his maternal grandparents…is likely to have a major emotional and psychological disturbance in Tyson's emotional well-being") Although their parenting may not have been perfect or strictly adhered to FaCS policies there was no cogent evidence that Tyson was at risk of significant harm, or indeed at risk of any harm, from his maternal grandparents. The restoration would have resulted in the removal of a child who was happy and thriving in a safe and loving environment with people to whom he was closely and positively attached and with whom he reliably expressed a wish to stay, to a home with a parent with Asperger's, a history of offending and whose parenting capacity had not been comprehensively assessed by the Secretary and which was contrary to the recommendation of the only expert in the case, the Children's Court Clinic Clinician. The Secretary, in forming and adhering to its support of restoration to the father had not appropriately assessed the evidence, had not considered the advice of the experts and had not considered Tyson's attachment to his current carers or his wishes and the harm moving him would do. There was no expert evidence relied upon by the Secretary to effectively contradict the view of the Clinician or indeed its own psychologist. In my view the Secretary's support of restoration to the father with no provision for contact with the maternal grandparents in their own right was without any rational basis was a gross error on their part, was contrary to Tyson's best interests and had no prospects of success. This is not the type of case where there was cogent evidence to support more than one outcome and reasonable minds may differ as to what that outcome should be. The Secretary's position had no merit and did not, at any stage have any merit. The order facilitating Tyson remaining with his maternal grandparents was the only reasonable order available. It should be clear that given these findings I reject the Secretary's submission that the caseworker was entitled to come to the decision she did. (ii) The maternal grandparents had to fund the litigation. The public purse in this case funded the legal costs of both Tyson's mother and the father, neither of whom have been his primary carers since he was removed more than 8 years ago. In this case the maternal grandparents have been Tyson's primary caregivers for almost the whole of his life and according to the overwhelming weight of evidence Tyson has thrived in their care. In this case the maternal grandparents have had to fund the litigation from their own limited means and had every right and justification in resisting the course of restoration the Secretary had planned. I consider these factors are relevant to the consideration of exceptional circumstances. (iii) The Secretary's Care Plan was 'deliberately misleading', 'raised baseless allegations' and 'false issues' as contemplated by SP. The Care Plan filed 27 May 2016 contains the following statements: (a) The maternal grandmother has unreasonably denied past requests in relation to contact arrangements and activities for Tyson with his father. FaCS remains concerned that the maternal grandparents are unable to facilitate and encourage meaningful relationships for Tyson with his mother and the paternal family. The maternal grandparents continue to denigrate family members in Tyson's presence and to discourage his attendance and enjoyment of the time he spends with them. (b) FaCS considers that the fundamental child protection concerns for Tyson include psychological harm, physical harm and parenting capacity. Psychological Harm Tyson requires a home environment that is free from psychological harm. FaCS is concerned that the maternal grandparents do not protect Tyson from psychological harm within their home. FaCS records indicate a history of the maternal grandparent's children having reported concerns of psychological harm during their childhood. These concerns have continued during Tyson's placement with reports received identifying exposure to ongoing psychological abuse and harm in the maternal grandparent's care. Tyson is exposed to consistent denigration of his other family members and is suspected to have been coerced by the maternal grandparents to provide FaCS and others with a view that is in keeping with their own. Physical Harm Tyson requires a home environment that is free from physical abuse. FaCS has substantiated physical abuse perpetrated by the maternal grandparents. In April 2012 the Reportable Conduct unit found that the maternal grandfather has used physical discipline in the form of smacking towards Tyson. In January 2013 the Reportable Conduct Unit confirmed that the maternal grandmother had used physical discipline in the form of smacking towards Tyson. In January 2013 the Reportable Conduct Unit confirmed that the maternal grandfather had used physical discipline in the form of smacking towards Tyson. In June 2014 FaCS found that the maternal grandmother had used physical discipline in the form of hitting Tyson with a broom and smacking him as well as psychological abuse in the form of swearing, yelling and screaming towards Tyson….. Parenting Capacity FaCS have concerns for the parenting capacity of the maternal grandparents given their use of physical discipline. These statements are false and/or misleading in the following respects: • There is no cogent evidence filed to establish that the maternal grandmother has unreasonably denied past requests in relation to Tyson's contact with his father or to discourage him in his enjoyment of contact with family. In fact the evidence is to the contrary including the Clinician's evidence that "the maternal grandparents have been diligent in supporting Tyson's relationship with each of his biological parents, and have not in any way attempted to alienate these relationships." • There is no cogent evidence that Tyson is at risk of psychological harm - The Secretary states a "concern" that the maternal grandparents do not protect Tyson from psychological harm relying on reported concerns relating to their now adult children. It is disingenuous of the Secretary to seek to rely on this information when it approved the placement some eight years ago and has supported the placement and positively approved Tyson's placement on an ongoing basis until these proceedings were commenced. They also rely on Tyson's exposure to "consistent denigration of his other family members". There is no cogent evidence of this yet there is an abundance of evidence that Tyson, in the care of his maternal grandparents was a happy and well-adjusted boy. - The Secretary relies on his "suspicion" that Tyson has been coerced into stating he wants to stay with the maternal grandparents. This 'suspicion' has been maintained despite evidence to the contrary. The best evidence in the case of the child's wishes comes from both Mr Bembrick and the Clinician which is that Tyson wants to stay with his grandparents. This view was confirmed by the Independent Legal Representative. I consider the statement in the Care Plan is both unfair and misleading. - Finally the Secretary relies on difficulties between the maternal grandparents and the mother and her partner. The Secretary does not provide any evidence or explanation as to how this has caused or is likely to cause psychological harm to Tyson. • There is no cogent evidence that Tyson is at risk of physical harm and the statements made in support of this conclusion are either false or misleading or both - Prior to these proceedings being instituted there were very many reviews over the years of placement. These did not raise concerns that Tyson was at risk of physical harm or about the quality of care Tyson was receiving. In March 2015 the report was typically positive and noted that the maternal grandmother did not require any training. - It was disingenuous of the Secretary to rely on the incidents outlined in the Care Plan as placing Tyson at risk when the most recent incident was 2013; the Secretary maintained Tyson's placement despite these incidents and post these incidents there were several positive reports, none of which mentioned risk, authored by the Secretary's own officers. In addition to this the smacking was determined to be non-reportable, presumably because it was insignificant. - The Care Plan includes the following statement: "In June 2015 FaCS found that the maternal grandmother had used physical discipline in the form of hitting Tyson with a broom and smacking him…" However in a letter from the Secretary to the maternal grandmother dated July 2015 there was a finding that the allegations were "not sustained. This means that on balance the evidence did not support that the conduct occurred." This letter obviously pre-dates the Care Plan. This statement in the Care Plan was both false and misleading. - There were allegations made by Tyson that he was smacked by his father. Despite relying on the smacking of Tyson as a risk to him, the Secretary did not include the allegation in the Care Plan. As a result the Care Plan was unfair and it was misleading suggesting, by omission of this allegation, that this was not an issue or risk if Tyson was in his father's care. - The Secretary included his 'suspicion' that Tyson was being coerced by the maternal grandparents to say he wanted to stay with them as a risk of psychological harm. Yet no mention is made of any 'suspicion' that the father may have been attempting to coerce Tyson. Indeed the maternal grandmother made this allegation in her affidavit of June 2016 and this allegation was corroborated by the mother in her affidavit affirmed in October 2016. Including the suspicion against the maternal grandparents yet omitting the allegations against the father was unfair and potentially misleading. • Expressing 'concern' as to the maternal grandparents parenting capacity and relying on information which is decades old but failing to mention the positive reports of the maternal grandparents' parenting of Tyson over his lifetime is also unfair and misleading. As a model litigant the Secretary clearly has responsibility to ensure that all relevant evidence is presented to the Court even if it does not assist his case. This responsibility is even more essential in a case where the proceedings are meant to be non-adversarial and the outcome sought is an order that is in the best interest of a child. It goes without saying then that it would be inimical to this responsibility to include false and misleading information in a Care Plan. The Secretary's inclusion of this false and misleading information and equally its omission of many of the positive reports over many years of the maternal grandparents were included to bolster the Secretary's case and provide some justification for the Secretary's position. I have concluded that the Care Plan contained false and misleading information. It also raised false issues, namely that Tyson was at risk of psychological and physical harm and that the maternal grandparents lacked the parenting capacity to appropriately care for Tyson. It was also misleading in that it failed to be even handed, ignoring allegations against the father, yet including them in relation to the maternal grandparents, (e.g. smacking and influencing Tyson's wishes) and by not including relevant positive information regarding the maternal grandparents including Tyson's attachment to them. The Secretary argues that I could not make findings that the case presented was false or misleading on the basis of what is contained in the Care Plan as it is simply one document in the whole case and should not and would not be expected to be read in isolation. I reject that submission. The Care Plan is a key document in the proceedings and it contains the basis and reasoning and conclusions of the Secretary's planning. The Secretary raised a significant number of baseless allegations in their material, including that Tyson was at risk of physical and psychological harm in the care of the maternal grandparents and that the maternal grandparents lacked adequate parenting capacity. The Secretary could have had no reasonable belief in these allegations as he had dismissed the allegations, and he had, despite the allegations, continued placement of the child with positive reports. The Secretary raised false issues that bore no relation to the facts. The Secretary continued to insist that Tyson was being unduly pressured by the maternal grandparents to say he wished to remain with them yet this was contrary to the evidence. The Secretary's Care Plan raised the issue of risk of harm to Tyson in his maternal grandparent's care when no such risk existed. The Secretary has a responsibility to ensure that all relevant information is presented to the Court. The filing of a Care Plan which was misleading, raised false issues and made baseless allegations is a legitimate matter for consideration in a costs application. In reaching these conclusions I reject the Secretary's submission that none of the criteria set out in SP have been made out. In my view there was a deliberate misleading of the Court, baseless allegations were made for which the Secretary had no belief existed and false issues were raised. (iv) The Secretary had a contumelious disregard for s 90 of the Act. The most concerning of the aspects of this case is the failure of the Secretary to give proper consideration to Tyson's attachment to his maternal grandparents and any harm he would suffer if that attachment was interfered with, prior to making the decision to restore Tyson to his father's care and indeed prior to starting the restoration process. There is only mention in the Care Plan of recognition of a bond or attachment to the maternal grandparents. It is in the context of Tyson being placed with his father and says that Tyson needs to continue to have contact with all his grandparents. In the Care Plan the maternal grandparents' relationship is equated with the paternal grandmother's relationship. The Care Plan states "Tyson needs to continue spending time with the paternal grandmother and the maternal grandparents as he has a strong connection to them" The specific plan for contact to the maternal grandparents is expressed as "unsupervised contact minimum 12 times per year when Tyson is in care of his mother." It is clear that the Secretary sees the primary contact to be with the mother and that the maternal grandparents contact is less important than the mother's contact and is "tacked on". This plan is restated as recently as 14 September 2016 in the PANOC referral referred to earlier, the action planned was "to restore Tyson dads primary care; joint to mum and dad with direction that the (sic) live with dad and spend every second weekend with mum." This was also referred to in the same referral document a "restoration to dad and mum looking at 12 days with dad and every second weekend with mum." The Secretary knows or should know that before the Court makes an order varying or rescinding a final order it must take into consideration the following matters, set out in s 90(6) of the Act: (a) the age of the child or young person, (b) the wishes of the child or young person and the weight to be given to those wishes, (c) the length of time the child or young person has been in the care of the present caregivers, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. In proceedings under the Act the significance of attachment is often raised. It is common in s 90 proceedings for the strength of the child's attachment to his/her current carers to be the most important and often decisive factor in determining these matters in the Court. The evidence in relation to the strength of Tyson's attachments and the risk of psychological harm in disrupting the placement from the maternal grandparents firmly and persuasively was in favour of the placement with the maternal grandparents being maintained. The Secretary simply does not address these very significant factors in his decision that Tyson should be restored to his father. SP referred to a contumelious disregard for s 93 of the Act. In the matter of XX v Nationwide News Pty Ltd [2010] NSWDC 147, her Honour Gibson DCJ stated that there was no reason why a contumelious disregard for s 93 of the Act was more serious than, for example contumelious disregard for the principles in s 9 of the Act. Following her Honour's reasoning I conclude that the Secretary's failure to appropriately consider the issues of attachment and risk to Tyson in breaking that attachment was a contumelious disregard for s 90 of the Act. In reaching this conclusion and the conclusion in (iii) above I reject the Secretary's submission that none of the criteria set out in SP are made out. (v) The Secretary had an entrenched and immoveable view and unreasonably rejected the powerful expert evidence without any expert evidence in contradiction. In March 2016 the parties received the report of the Children's Court Clinic. The opinion of the Clinician was clear and unequivocal and was formed after assessment of all relevant parties in a well-reasoned and compelling report. The report's findings in relation to restoration to the father were that "the father is at the embryonic stages of developing his parenting capacity, but it is reasonable to suggest that his views about a range of matters pertaining to Tyson's long term welfare are at their infancy stage. Whilst it would appear that he wishes to empower Tyson in the decision making process, this is clearly a proposition which is beyond Tyson's years and capacity." The Clinician concluded that there is no evidence "to support Tyson's placement with the maternal grandparents being altered, as such a disruption is only likely to have a deleterious impact upon Tyson's long term psychosocial development." Despite having no other expert evidence and no reasonable explanation as to why he differed from the expert, the Secretary filed the Care Plan, contrary to that expert evidence. The Secretary, rather than considering the evidence of the Clinician, accepting Tyson's views as being genuine, and taking into account his own officer's positive parenting reports assembled over the years of Tyson's placement, substantially relied upon unsupported statements, minor issues and old allegations that had not been considered as any bar to the maternal grandparents' care until these proceedings. The Secretary argued that he was entitled to test the evidence of the Clinician. In rejecting this submission I adopt the response in Georgia v Luke [2008] NSWSC 1387 Palmer J to the then Director-General's argument he was entitled to "test" the Children's Court Clinic report by cross-examination: "Unless it is to be suggested that Dr Tong has acted with bias or has held a view which could not reasonably have been held by a professional person in her position…I think that this insistence on a right to "test" by cross-examination is mere cavilling, inspired by an intention on the parts of the DOCS officers concerned to justify their position rather than simply accepting the self-evident correctness of the opinion expressed by Dr Tong…" The report of the Clinician was independent, comprehensive and well-reasoned. The Secretary maintained his view throughout these proceedings that Tyson was being coerced into expressing the view that he wished to stay with his maternal grandparents. Tyson expressed to the Children's Court Clinic Clinician, his Independent Legal Representative and to Mr Bembrick that he wished to remain living with his grandparents. None of those three found any evidence that the maternal grandparents were exerting an influence on Tyson to say that. In fact the Clinician stated: "There is no evidence that the maternal grandparents coached Tyson and indeed the evidence would favour a positive finding that Tyson was not coached by his grandparents." In the affidavit of Ms Birkett affirmed 25 May 2016 she annexes a 'Record of Home Visit to the father's home on 9 October 2015. The father told Ms Roe that when he told Tyson that she was coming Tyson told him he did not live with him. Despite all of this the Secretary did not accept that it was Tyson's view that he wished to remain living with his grandparents and persisted in pursuing a return to the father's care in accordance with what the Secretary doggedly perceived as Tyson's view. (vi) The circumstances in this case are out of the ordinary course or unusual or special or uncommon, not regularly, routinely or normally encountered. The decision to restore Tyson was made by the Secretary: * Without a comprehensive assessment of the father which supported such a restoration, despite the father's diagnoses of Asperger's, his criminal history and lack of experience of parenting * Seemingly without consideration of the fact that the then 9 year old Tyson had been thriving in a permanent placement with his maternal grandparents * Contrary to the expert evidence which included the opinion that such a move would likely cause Tyson positive harm * Although Tyson had expressed to the Clinician and to his own legal representative that he wished to stay with his maternal grandparents. The Secretary's decision in these circumstances to restore Tyson to his father's care was not only unjustified it was unjustifiable. This is not a case where the Secretary undertakes assessments, considers the evidence and forms a reasoned and reasonable view, but the Court reaches a different view of the evidence. Those are circumstances which are regularly encountered. The Secretary presenting an unjustified and unjustifiable case in court is mercifully, out of the ordinary course, unusual and uncommon. I will go further to say that the Secretary's contact proposal to the maternal grandparents is extraordinary. The maternal grandparents though the primary carers of this then 9 year old boy since he was 7 months are offered, not regular contact in their own right, but contact 'tacked on' to the mother's contact. I absolutely reject the Secretary's submission that these proceedings are typical of s 90 proceedings. (vii) This is an application the maternal grandparents had to bring. The Minister held parental responsibility and decided to restore Tyson to his father. The Secretary began the restoration process and intended to complete that process. Restoration was contrary to Tyson's best interests and indeed accepting the evidence of the Clinician would likely have caused Tyson "a major emotional and psychological disturbance." The Secretary argues that the maternal grandparents did not have to bring the application they had other avenues that could have been pursued, including making an application to NCAT. It is disingenuous for the Secretary to argue that the Secretary played no part in the proceedings or the maternal grandparents should have pursued other avenues if dissatisfied with the decision. The fact was that the Secretary was implementing his decision regarding restoration whilst there were current proceedings before the Court. Lodging the application in these proceedings was the most effective way of protecting Tyson's best interests. In any event the availability of an alternative course is not a bar to a costs application. (viii) The maternal grandparents only needed to become parties because of the Secretary's support for restoration The reason why there was a need for separate representation of the maternal grandparents, the reason why they had to be directly involved was because of the Secretary's position in supporting the restoration. If the Secretary had opposed the restoration then there would have been no reason for the maternal grandparents to have made an application. This is relevant to the issue of costs. 1. I have concluded that the circumstances of this case are exceptional and a costs order should be made in favour of the maternal grandparents as against the Secretary. I reject the Secretary's submissions which sought to characterise these proceedings as simply a contest between the father and the maternal grandparents, with the Secretary involved simply as it holds parental responsibility and is required to prepare a Care Plan. 2. The Secretary formed a view that Tyson should be restored to his father's care. The Minister exercised his parental responsibility and began to implement that decision, despite the opposition from the maternal grandparents and the Independent Legal Representative. 3. The case that the father presented to the Court was that he was now well placed to offer long term care to Tyson. 4. The Secretary's case was not limited to agreeing with the father's case. Significantly the Secretary's case was that Tyson was at risk of physical and psychological harm from his maternal grandparents, that they didn't have the parenting capacity to provide ongoing care to Tyson and further that the Court could not put faith in Tyson's wishes as the maternal grandparents had likely coerced him in presenting those views. 5. The issues raised by the Secretary and the misleading nature of the Care Plan served to make the proceedings far more complex and obliged the maternal grandparents to address those issues in evidence. 6. The characterisation, in the Secretary's submission, of the maternal grandparent's complaint as being about increased contact and the Secretary's actions as only increasing contact to the father which he was legally entitled to do "because the final orders required a minimum level of contact..." is plainly wrong. It was clear to all parties and to the Court that the Secretary began implementing its Plan for restoration and indeed in the Care Plan described the father as Tyson's primary carer since November 2014 "with the support of …FaCS." 7. Neither is it fair or accurate to describe the maternal grandparents' application for costs being based on "a dislike for the evidence filed." 8. There was no criticism made of the way in which Counsel conducted the proceedings at the hearing. Although the maternal grandparents' raised the fact that there was very little cross-examination of the Clinician, this was in no way a criticism of Counsel, nor could it have been. The issue was raised to argue that the Clinician's report and opinion was unassailable and the only decision that the Court could have reached was a decision that Tyson live with his maternal grandparents. 9. The Secretary seemed to submit that the maternal grandparents are no longer authorised carers and the Secretary was unable to support placement with them and therefore the Secretary had no choice but to support restoration to the father. 10. The evidence in relation to this issue is contained in the affidavit of Ms Birkett dated 25 May 2016. In that affidavit she states: "On 19 November 2015 I spoke to the maternal grandparents regarding the authorised carer review. During this conversation I advised the maternal grandparents that their ongoing refusal to complete their medical reviews and comply with the Code of Conduct could result in their carer authorisation being cancelled and Tyson being removed from their care." because of their failures to complete medical reviews." 1. This is the last affidavit filed on behalf of the Secretary. The maternal grandmother's affidavit sworn 8 June 2016 advises that the medical reports were delivered to the Secretary's office on 15 June 2016 and she had no further advice as to whether further reports were necessary. 2. There was no evidence brought to my attention in the proceedings that the carer's authorisation had been cancelled. It was certainly not cancelled by the date of the Care Plan and I therefore reject this submission. 3. In any case even if the authorisation was cancelled that does not result in the Secretary's only option being supporting a restoration to the father. The Secretary could have supported an order of parental responsibility to the maternal grandparents. 4. The Secretary also makes a submission which I understand to be that the assessment the Secretary made of restoration to the father could not be held to be unreasonable because the Secretary was only complying with the permanent placement principles contained in s 10A of the Act. Section 10A is as follows: (1) In this Act "permanent placement" means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. (2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The "permanent placement principles" are as follows: (a) If it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship. …………. 1. The Secretary cannot succeed in this submission. Section 10A does not apply to Tyson as he does not need a permanent placement as he already has a permanent placement. Section 10A does not apply where there is already a successful permanent placement which has been put in place under the permanency planning principles of the Act. Section 10A does not require children to be taken from a "permanent placement" after being placed by a final order of the Court applying the permanency planning principles and restoring a child to his/her parents. 2. Even if I was wrong and s 10A did apply there is no rational basis on which to conclude that it was in Tyson's best interest to be removed from his maternal grandparents' care. 3. In all these circumstances this is a case which warrants an order for costs under s 88 of the Act as I am satisfied that exceptional circumstances have been made out. Indemnity Costs 1. The Court has a wide power to award indemnity costs. The discretion, although wide, must be exercised judicially and be the subject of careful reasoning. 2. An award of indemnity costs should be compensatory and not punitive. 3. The Court should exercise caution in awarding indemnity costs. 4. The test when considering indemnity costs is a different test to the "exceptional circumstances" test contained in s 88 of the Act. 5. There appears to be no fixed rule or rationale as to when the discretion might be exercised except that it requires a "sufficient or unusual feature" (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–234), or some "relevant delinquency": Oshlack v Richmond River Council (1998) 193 CLR 72. The categories are not closed: Colgate-Palmolive Pty Ltd v Cussons at 257. 6. In XX his Honour stated he was not aware of there being any case where indemnity costs have been awarded in care proceedings and confirmed the principle that orders for indemnity costs should be made sparingly. 7. The information contained in and omitted from Tyson's Care Plan was deliberate in the sense that it was included to bolster the Secretary's case. The result however was that the Care Plan was misleading and in breach of the Secretary's responsibility as a model litigant. 8. The caseworker and casework manager were not called to give evidence. I cannot make a finding that the Care Plan was deliberately constructed to be false or misleading as opposed to being persuasive. 9. There is no evidence that the Secretary's officers did not honestly believe that they were acting in accordance with Tyson's best interest. 10. The caseworker told the maternal grandparents that the father's contact was being increased because Mr Tanner lodged his application for restoration and "we need Gary to demonstrate his ability to care for Tyson and give him the opportunity to show he can do this." It is clear from this statement, the contents of the Care Plan and the Secretary's submissions that the Secretary: * considered he was obliged to apply s 83 and assess whether there was a realistic possibility of restoration; * considered he was obliged to apply the s 10A principles resulting in an obligation to place Tyson with his father; and * failed to consider all the factors contained in s 90 which he knew or should have known the Court would have to consider before making an order 1. In my view the Secretary, in assessing the issue of restoration pursuant to s 83, seeking to apply s 10A and not addressing the factors in s 90, wrongly treated this case as though it was an application for an initial care order pursuant to s 61 of the Act instead of an application to vary or rescind a care order. 2. This error and the fact that the Secretary included incorrect and irrelevant information yet failed to take into account all the relevant information in making his decision led to the Secretary's concluding, without proper justification, that Tyson should be removed from his maternal grandparents and restored to his father. 3. Although I am comfortably satisfied that this is a case of 'exceptional circumstances' and the Secretary should pay the maternal grandparents' costs, in my view, the case has not been made out to the extent that it has reached the level of delinquency required for an award of costs on an indemnity basis. Quantum of Costs 1. There have been two affidavits filed in relation to costs on behalf of the maternal grandparents. 2. The first is an affidavit of the maternal grandmother, sworn 8 February 2017, which states she and her husband have spent $22,372.54 on solicitors' and counsel's fees in this case. In order to fund the litigation they took out a personal loan in the sum of $20,000. 3. The second affidavit is that of Mr Hoffman, solicitor for the maternal grandparents, sworn 1 March 2017, which sets out an explanation of the costs. 4. The quantum of costs is put in issue by the Secretary. Decision and Order 1. Exceptional circumstances as contemplated by s 88 of the Act are made out in this case for the reasons I have given and the Secretary is to pay the maternal grandparents' costs in these proceedings. 2. The maternal grandparents' application for indemnity costs is refused as the Secretary's conduct does not, in my view, warrant the making of such an order. 3. The maternal grandparents' have filed evidence in relation to their costs. The quantum of the costs is not agreed by the Secretary. I do not propose embarking on a contested hearing as to the appropriate sum to be paid in costs and therefore if the costs cannot be agreed then costs will have to be assessed. Order The Secretary is to pay the costs of the maternal grandparents. Costs are as agreed or as assessed. ********** 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: 14 July 2017