CP v Director-General of Community Services Directorate (No 2)
[2018] ACTSC 201
•6 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | CP v Director-General of Community Services Directorate (No 2) |
Citation: | [2018] ACTSC 201 |
Hearing Date: | 22 December 2017 |
DecisionDate: | 6 April 2018 |
ReasonsDate: | 20 July 2018 |
Before: | Refshauge J |
Decision: | 1. That the application dated 12 July 2013 for a care and protection order in respect of LC be dismissed. 2. That the care and protection order made on 24 June 2014 in respect of LC be set aside. 3. That orders 1 and 2 be stayed until 7 May 2018 or further order. 4. That the court finds that JP, GP and DP were at risk of physical abuse. 5. That the question of whether CP is able to protect them from physical abuse and, if not, whether a care and protection order in respect of each of these children be made and of what length be listed for hearing on 12 June 2018. 6. That the court finds that NP was at risk of neglect. 7. That the question of whether CP is able to protect him from negligence and, if not, whether a care and protection order in respect of him be made and of what length be listed for hearing on 12 June 2018. 8. That, for the purpose of that hearing on that date: (a) The Director-General is ordered under s 436 of the Children and Young People Act 2008 (ACT) to arrange for a care and protection assessment of CP in relation to JP, GP, DP and NP; (b) The Director-General be requested to consult with CP and her legal representatives before appointing a person to conduct the assessment; (c) The Director-General have leave to file and serve any further affidavits on which it is proposed to rely in respect of the issues the subject of the hearing on or before 7 May 2018; (d) CP have leave to file and serve any further affidavits on which she proposes to rely in respect of the issues the subject of the hearing on or before 28 May 2018; (e) The Director-General have leave to file and serve any affidavits in reply on or before 4 June 2018. 9. That the Director-General pay the costs of CP of the proceedings in this court to date. 10. That there be no orders for costs of the proceedings in the Childrens Court. 11. That it be declared that the care and protection orders made in the Childrens Court in respect of JP, GP, DP and NP are not affected by this order. |
Catchwords: | CHILDREN – CHILD WELFARE – Care and Protection Orders – whether orders justified – what orders should be made APPEAL – APPEAL FROM CHILDRENS COURT – Appeal upheld – whether appeal court should remit or finalise proceedings – proceedings not remitted PROCEDURE – COSTS – Whether costs order under the Children and Young People Act 2008 (ACT) limited – exceptional circumstances – partial costs order made |
Legislation Cited: | Children and Young People Act 2008 (ACT) ss 9, 11, 12, 342, 343, 406(1), 433(1), 433(3), 433(3), 435, 436, 437(3), 438, 464, 711, 724, 724(2), 724(3), 725, 725(2)(b), 726, 727, 727(3), 836, 837, 838, Pt 19.6 Children and Young Persons (Care and Protection) Act 1998 (NSW) s 88 Magistrates Court Act 1930 (ACT) s 274(2) |
Cases Cited: | A and B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, SC 77 and 78 of 1995, Higgins J, 31 May 1996) Bateman v Fairfax Media Publications Pty Ltd (No 2) [2013] ACTSC 95 W v Director-General, Community Services Directorate [2014] ACTSC 404 |
Parties: | CP (Plaintiff) Director-General of Community Services Directorate (Defendant) |
Representation: | Counsel Mr P Walker SC (Plaintiff) Mr K Archer (Defendant) Ms L Strong (Children’s Representative) |
| Solicitors Women’s Legal Centre (Plaintiff) ACT Government Solicitor (Defendant) Strong Law Pty Ltd (Children’s Representative) | |
File Number: | SCA 56 of 2014 |
Decision under appeal: | Court/Tribunal: Childrens Court Before: Magistrate Fryar Date of Decision: 24 June 2014 Case Title: In the matter of an application for interim and final Care and Protection Orders by the Director-General of the Community Services Directorate in respect of JP, GP, DP, LC and ND Court File Numbers: KE 2572, 2573, 2574, 2575 and 2576 |
REFSHAUGE J:
On 24 June 2014, the Childrens Court made care and protection orders under s 464 of the Children and Young People Act 2008 (ACT) (the Children’s Act) in respect of five of the eight children of the appellant until those children reached the age of 18 years. I shall refer to the appellant as CP.
CP appealed against this decision and, on 21 December 2017, I upheld the appeal: CP v Director of Community Services Directorate [2017] ACTSC 394 (the Primary Decision). I sought oral submissions on the consequential orders to be made from this finding because of the complexity of the issues and the range of possible orders that could be made.
At the further hearing of those submissions, CP sought the dismissal of the applications for care and protection orders and the Director-General of the Community Services Directorate, to whom I will refer as the Director-General, sought a remittal of the applications to the Childrens Court for further hearing by it.
The Children’s Representative could not attend the hearing of these submissions but made written submissions. These seemed to proceed on the basis that there should be a re-hearing in the Childrens Court, though this had not been decided and, indeed, was intended to be at least one of the subjects of submissions.
The main concern of the Children’s Representative was that certain Interim Orders made in the Childrens Court should remain in place pending any re-hearing so that the status quo would be preserved and there would be appropriate care for the children. This was a concern shared by the Director-General.
CP also sought her costs of the appeal and of the hearing of the Childrens Court proceedings; the Director-General opposed that application.
As noted below (at [26]-[38]), delay has been a problem in these proceedings. Because of personal difficulties in finishing these reasons, but after I had clearly formed a view as to the proper disposition of the proceedings at this stage, I made orders, gave directions and made a declaration on 6 April 2018 but without then publishing my reasons. These are my reasons.
In these reasons, I shall continue to refer to the appellant and the children and young people the subject of these proceedings by the initials I used in the Primary Decision, to comply with s 712A of the Criminal Code 2002 (ACT). For ease of reference, I will also refer collectively to the children and young people as “children”, and individually as “a child”, even though the Children’s Act makes a distinction between a child (s 11: a person who is under 12 years old) and a young person (s 12: a person who is 12 years old or older but not an adult, which, by the definition in Pt 1 of the Dictionary in the Legislation Act 2001 (ACT), is a person who is at least 18 years old). In doing so, I intend no disrespect to those involved.
Interim position
In the Primary Decision at [3], I noted that Interim Care and Protection Orders had been made in respect of each of the children the subject of these proceedings pending the final hearing in the Childrens Court.
In the Primary Decision at [653], I suggested that the setting aside of the decision of the Childrens Court would then mean that the Interim Orders would not have ended. That, as was pointed out at the further hearing, was not the correct position.
Section s 433(3) of the Children’s Act provides in fact that an interim order must state in the order itself when it ends and this end date must be the day of or the day before the application is decided.
My suggestion referred to above (at [10]) would only apply were the Interim Orders to have been made until further order, but that would not comply with the mandatory provisions of s 433(3) of the Children’s Act.
In fact, while not in the Appeal Book, the Schedule of Documents from the Magistrates Court (see Bedford v Earle (No 2) [2015] ACTSC 309 at [114]) included the Bench Sheets of that Court and showed that the first Interim Orders had been made on 12 July 2013 and were not made “until further order”. It seems that they were “extended” on each subsequent occasion the proceedings were before the Court until finally “extended” on 18 June 2014 to 2.15 pm on 24 June 2014, that is, the date and time when the Final Orders were then made. Thus, in their terms, they did not extend beyond the making of the Final Orders.
The provisions relating to interim orders in the Children’s Act are not entirely clear and do suffer from the problems that often occur when procedural provisions are included in legislation rather than court rules or even practice directions.
Thus, there is no express provision in the Children’s Act empowering the court to extend an interim order. There is a provision in s 435 for an interim order to be amended and, presumably, this could include the amendment of the end date required to be specified in it. That provision, which appears to be mandatory, is complex and would be unwieldy in the context of a mere extension of time of an interim order being made because of the date on which the application for final orders is to be decided.
There is no express power for the Court to amend an interim order on its own initiative and, in the light of the powers expressed in s 433(1) of the Children’s Act for the Court to act on its own initiative, I do not infer a power in the court to act on its own initiative where not so expressed in the same Division of the Act, especially where there are no countervailing considerations, as explained in Blundell v Sentence Administration Board of the Australian Capital Territory [2010] ACTSC 151 at [132]-[137].
It would seem, therefore, that each time the Childrens Court purported to extend the Interim Orders it was actually making a fresh order and this, of course, required the Court to be satisfied of the relevant matters, though I accept that this may not have been difficult; the Childrens Court did not appear to address those issues.
In order to protect the status quo after delivery of the Primary Decision, which clearly would be desirable for the children pending the making of final orders, it may be that I could make further Interim Orders.
That follows, it would appear, from r 5052 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules), which gives to this Court “all the powers … of the court … that made the order appealed from”, which would permit this Court, on the appeal, to make an Interim Order for care and protection.
This rule applies for the following reasons. Section 836 of the Children’s Act gives the Supreme Court jurisdiction to hear appeals from decisions of the Childrens Court, including, inter alia, the making of a care and protection order. Section 837 then provides that such an appeal may be brought as if it were an appeal from a judgment or order mentioned in s 274(2) of the Magistrates Court Act 1930 (ACT) and the provisions relating to civil appeals from the Magistrates Court then apply. The effect of this is to permit such an appeal to be commenced as of right and not to require leave and, further, to apply the appeal provisions relating to civil appeals from the Magistrates Court to such appeals.
Item 27 of Pt 1.2 of Sch 1 of the Court Procedures Act 2004 (ACT) authorises rules to be made, inter alia, in relation to appeals from the Magistrates Court to the Supreme Court and r 5052 of the Court Procedures Rules is such a rule.
Perhaps a little oddly, s 838 of the Children’s Act also applies but merely to prohibit the Supreme Court from making, on an appeal from the Childrens Court, any order that the latter court could not have made in the proceedings from which the appeal has been taken. This reinforces the meaning I have given to r 5052 of the Court Procedures Rules in this context.
Given that I had expressed some concern about whether the evidence before the Childrens Court in these proceedings would satisfy me that the subject children were in need of care, it may not have been appropriate for me to make Interim Orders, for a precondition to their making is that I believe on reasonable grounds that the child or young person is in need of care and protection or would be if such an interim order were not made. Nevertheless, it is important that I not immediately disrupt the status quo.
At this stage, the only formal order that has been made is to uphold the appeal. That does not, in my view, affect of its own force the orders of the Childrens Court. As noted in Hall v CL (No 2) [2015] ACTSC 294 at [18]-[19], the dismissal of a criminal appeal by the court requires the court to confirm the sentences of the Magistrates Court. Similarly, it seems to me, a further order to that merely upholding the appeal, in this case varying or setting aside the orders of the Childrens Court, would be required before those orders cease to have effect.
Thus, in this case, I expressly noted that I had not, at that stage, disturbed the orders of the Childrens Court of 24 June 2014 so that they remained in effect until further orders were made.
Delay
These proceedings have been attended by regrettable delay. A brief chronology shows that the incidents which caused the initial intervention of the Director-General, whose officers sought emergency relief and the Interim Orders, occurred on 10 July 2013.
Proceedings were commenced in the Childrens Court on 12 July 2013 and the first Interim Orders were made by consent on that day. The proceedings were then adjourned and there were six further adjournments which appear to have been made so that directions could be given at further directions hearings from time to time to facilitate the hearing. The proceedings were ultimately heard on 23 and 24 April 2014. After yet a further directions hearing, final orders were made on 24 June 2014.
The Appeal to this Court was commenced on 21 July 2014. Because the parties were awaiting the transcript of the proceedings in the Childrens Court, the index of appeal papers was not settled until 16 October 2014. The Appeal Books, involving three large lever-arch folders of a total of 1,056 pages, were filed on 5 November 2014.
There were, in this Court, further directions hearings. Leave was given for the Notice of Appeal to be amended and for CP to adduce further evidence, which required an application that had to be heard and which was ultimately granted. Leave was sought and given to CP to issue subpoenas, following which leave was given to the parties to access the documents then produced.
The Notice of Appeal was, however, not finally amended until 11 March 2015, the time for doing so having been extended on a number of occasions.
Finally, the interlocutory matters having been resolved, the proceedings were heard on 1, 2 and 7 April 2015. At that hearing, the further evidence admitted consisted of two lever-arch folders of documents consisting of 594 pages with no index nor any specific attention being drawn to particular documents during the hearing, though CP relied on them all as particular evidence of the behaviour of her children while in out-of-home care and on visits with her.
The issues in the proceedings were complex, not least because of the rather problematic way that the proceedings had been conducted before the Childrens Court, especially by counsel for CP, a matter to which I referred in the Primary Decision. There were also 14 grounds of appeal, three of them with up to eight particulars, which required careful and detailed consideration of the evidence in the Childrens Court and of the relevant law. The further evidence also required careful scrutiny and consideration.
Regrettably, this delayed the completion of the judgment and reasons which were pronounced and delivered on 21 December 2017.
Because of the need for further consideration of what consequential orders should be made, the parties were heard as to this matter on 22 December 2017 when I reserved my further decision.
The proceedings show a regrettable, likely unacceptable, delay in bringing them to a conclusion and I regret the part that I have played in this.
Section 9 of the Children’s Act sets out the principles which a decision-maker, including a court (see Dictionary), must have regard when making a decision under the Act. One of these is:
(d) delay in decision-making under the Act should be avoided because delay is likely to prejudice the child’s or young person’s wellbeing.
As pointed out by Penfold J in JH v Director-General, Community Services Directorate [2012] ACTSC 30; 260 FLR 21 at 32; [59], this provision makes the reason for the avoidance of delay quite explicit, namely its likely capacity to prejudice the well-being of the child or young person.
The undesirability of delay is relevant to the way in which proceedings are to be conducted and is, of course, a relevant factor to be taken into account and to influence decisions to be made. See CAD v Department of Child Safety [2009] QCA 169 at [20].
I shall refer to this issue below.
Consequential orders – disposition of appeal
There are various orders that I could make to dispose of this appeal. Rule 5052 of the Court Procedures Rules provides as follows:
(1)For an appeal to the Supreme Court, the court –
(a) has all the powers and duties of the court or tribunal that made the order appealed from; and
(b) may draw inferences of fact; and
(c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and
(d) may make any of the following orders:
(i) an order confirming, amending or setting aside the order of the court or tribunal appealed from;
(ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and
(e) may make any other order that it considers appropriate.
As noted above (at [22]), this is subject to the restrictions in s 838 of the Children’s Act.
These provisions are to be considered in the light of the nature of the hearing. As I explained in JL v Director-General, Community Services Directorate (ECD) [2015] ACTSC 24 at [10]-[13], the appeal is a re-hearing. Where relevant, the standard of proof is, by s 711 of the Children’s Act, proof on the balance of probabilities.
An appeal by re-hearing is a means by which error is to be detected and the identification of error is an indispensable condition of a successful appeal: Norbis v Norbis (1986) 161 CLR 513 at 518-9. I did find error in the proceedings in the Childrens Court. The errors are set out in the Primary Decision.
Having admitted further evidence, the role of this Court on the appeal is somewhat different to that had no further evidence been admitted.
Where there is further evidence admitted, that evidence will be taken into account in determining whether error has been identified. See, though in the context of a criminal appeal, where somewhat different principles apply, Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at 12; [52]-[54].
The role of an appellate judge on a re-hearing is different from that of a trial judge. As Doyle CJ, with whom Duggan J agreed and Lander J relevantly agreed, said in Wade v Australian Railway Historical Society (South Australia Division) (t/as Steamranger) [2000] SASC 233; 77 SASR 221 at 227; [38]:
It is the duty of this Court to consider whether the findings are correct. However, it is not for this Court merely to substitute its own view, as if it were again performing the function of the trial judge.
Thus, in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78], I explained the nature of a re-hearing as follows:
Appeal by way of rehearing is also one where the appeal court must determine the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not likely be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
More recently, in Kalis v New [2017] ACTSC 334 at [7]-[8], I explained those matters as follows:
As I explained in Malik v Remondis Australia Pty Ltd [2015] ACTSC 135 at [10]-[14], such an appeal is a re-hearing. In summary, that requires this Court to determine whether the decision of the Court below is wrong by falling into error of law, making a clearly wrong finding of fact or exercising a discretion on a wrong principle, and only on such a finding is this Court justified in interfering with the decision of the Court below.
As the appeal court, this Court must conduct a real review of the trial and of the reasons of the judicial officer from whose decision the appeal is taken. That review, however, must pay due regard to the advantage of the learned Magistrate who has seen and heard the witnesses. The appeal court, however, may draw its own inferences from the primary facts found by the learned Magistrate.
In this case, however, I have found that the decision of the learned Magistrate was infected by error in not applying the statutory tests, nor making relevant findings and failing to give adequate reasons.
This entitles me to amend or set aside the orders of the learned Magistrate. I may also make, on the evidence now before me, any order that the Childrens Court could have made or I can remit the case back to the Childrens Court to be re-heard with or without certain directions.
Rule 5052(1)(e) of the Court Procedures Rules gives the appellate court a wide discretion, constrained by the need to find a jurisdiction to make the order there contemplated, for the reasons I outlined in Boxx v Peden [2017] ACTCA 39; 324 FLR 39 at 41-2; [3]-[12]. See also what Collier J, with whom Penfold J and I agreed, said in the same case at 57; [88].
With those general remarks, I turn to the decisions I could make here. There are effectively three possibilities, namely to reverse, affirm or amend the decision of the Childrens Court, to remit the matter to that Court or to make an appropriate substitute order.
The court has a discretion as to how it should proceed. There are, in the context of the exercise of the discretion, matters to be considered. These include the time and expense that a re-trial would occasion as well as the personal stress that would inevitably be experienced by the litigants, especially where they are individuals involved who are, in this case, dealing with highly personal and emotional matters. For the appeal court to decide the matter would reduce the number of appeals but also deprive the parties of a further appeal that a further re-trial would afford. In this case, delay is a significant matter and the court, as a decision-maker, is mandated by the Children’s Act to reduce it where appropriate. Remission will increase delay. The history of the proceedings may be important. Thus, it might be said that the appeal court should try to resolve the proceedings if it can.
Nevertheless, the interests of justice and fairness to the parties is important and needs to be respected. In this case, as well as the formal parties, the children have clear interests and these need to be considered.
Prima facie, remission of the proceedings to the Childrens Court may seem the more likely course to be taken. I briefly pause to consider that course of action based on a review of the relevant authorities.
The authorities suggest that where an appeal court has upheld an appeal, it will usually not remit the proceedings in the following circumstances:
-where the appeal court can make the necessary findings, even accepting the advantage of the trial judge in seeing and hearing the witnesses. Thus, in Percy v Fox [2001] NSWCA 100, the court did not remit the proceedings, a course of action not disturbed by the High Court: Fox v Percy [2003] HCA 22; 214 CLR 118.
-where the facts are uncontested or where they are conclusively proved.
-where the issue or issues on which there would be a rehearing are trivial.
-where, even in discretionary matters, such as quantum of damages or the sentence to be imposed, the appeal court is in as good a position as the trial judge to determine the issue.
-where, even despite error having been shown, the same decision will inevitably be made.
-where a party wishes to prosecute a different case at trial than that which he, she or it prosecuted in the first place.
The appeal court will, however, usually remit a case for trial when the appeal has been upheld in the following circumstance:
-where matters of credibility are important so that the court seeing or hearing the witnesses given their evidence has an inevitable advantage.
-where there is an absence of important evidence available to the appeal court, such as where some evidence was improperly excluded and is not before the appeal court or where it is appropriate for a party to adduce further evidence, especially where such evidence is likely to be contentious.
-where there are substantial issues to be resolved.
-where conclusions cannot be drawn from proven facts.
-where the appeal court finds a decision of law to be erroneous, especially on a procedure such as a stated case and should remit the case with its opinion.
See, among the relevant authorities, Ex parte Sharah; Re Cox (1956) 73 WN (NSW) 282 at 290; Grace v Southern [1978] VR 75 at 79; Mitchell v Nestlé Australia Pty Ltd (1988) 36 A Crim R 119 at 125; Symes v Proprietors of Strata Plan No 31731 [2001] NSWSC 572 at [65]-[66]; Rashleigh v Environment Protection Authority [2005] ACTSC 18; 155 ACTR 16 at 37; [97]; Linch v Linch [2014] FamCAFC 69 at [87]-[89].
With these matters in mind, I turn to the issue of what consequential orders should be made. I note also that CP sought her costs of the appeal. I shall deal with that issue separately. I will also deal generally with each application, though those involving JP, GP and DP can be broadly considered together.
I note, too, that the Director-General, as a result of my finding in relation to the appeal, sought to adduce further evidence. No details were given of that further evidence or even its nature.
I am mindful that, in these proceedings, I am dealing with the welfare and future of children and that, to the greatest extent possible, I should be careful to ensure that their best interests are paramount and that forensic decisions do not impede the attainment of that required objective.
Having said that, I am bound by and must respect the legislation and cannot subvert it. Indeed, the appeal was upheld, in part, because of the failure in the proceedings below to focus clearly on the Children’s Act and what it required. When dealing with an application for a care and protection order, I am not, and nor is the Childrens Court, conducting a roving commission of inquiry to look at the best interests of the children and young people in a vacuum but, rather, in the carefully crafted and specific terms of the legislation.
Nevertheless, in the extraordinary circumstances of this case, I do not consider that I should receive such further evidence at this stage. When this submission was made, Mr P Walker SC, who appeared for CP, objected, pointing out that the relevant events were now nearly five years old. It was not suggested in response that the further evidence would not go to the original issues of whether the subject children were in need of care and protection.
It seems to me that the Director-General has had plenty of opportunities to place all the evidence required about whether the subject children are in need of care and protection before the various courts and that, for the purposes of the proceedings before me, I should not permit any further evidence to be adduced.
Nevertheless, I note that I required a further hearing in the proceedings and clearly, in order properly to discharge my responsibility as an appeal court undertaking a re-hearing, I need evidence about, for example, the present situation and the current wishes of the children. In the orders I have made, I gave directions about this and limited such evidence to the issues relevant to the re-hearing.
The first question to be addressed is whether the children or any of them are in need of care and protection. In order to decide that, I must first find whether they have been abused or neglected, are being abused or neglected or are at risk of being abused or neglected: s 343 of the Children’s Act. That requires a review of the relevant evidence, much of which I had carried out in the Primary Decision, but more is required.
Under the Children’s Act, the terms abuse and neglect are defined in ss 342 and 343 respectively. They are, however, quite general definitions and I have provided some further clarity as to their meaning in the Primary Decision as follows: abuse, which includes physical abuse (see [417]), sexual abuse (see [419]) and emotional abuse (see [421]); neglect (see [426]-[430]). I shall use these definitions and explanations when dealing with these issues.
In the Primary Decision at [580], I held that the questions, of whether the children were in need of care and, then, whether CP was willing and able to protect them from any relevant neglect and abuse, had simply not been addressed adequately, though that was not to say that the evidence could not have sustained these findings; I did not address that question to a final conclusion at that stage.
In order to avoid delay, it is clearly better that, so far as is possible, I should finalise as much of the proceedings as I can, rather than remit them. Were I to remit the proceedings, it seems likely that it would be to the Childrens Court differently constituted. This would require a judicial officer to become familiar with a very large amount of material with which I have had to become familiar. Expedition and the avoidance of further delay seems to me reasonable to require that I not remit the proceedings but resolve them as far as I properly can.
As noted in the Primary Decision at [55], a large part of the evidence before the Childrens Court was written, comprising affidavits and admitted exhibits. There was some additional oral evidence and reasonably extensive cross-examination.
Accordingly, as Mr Walker SC pointed out in submissions to me, credibility of the witnesses, the Child Protection Worker from Care and Protection Services, Ms Kira Barbaric, and CP, was not really in issue: indeed, Ms Barbaric was, apart from the events of 10 July 2013, relying in large part on reports and records of the Community Services Directorate, so most of her evidence was strictly hearsay to which her credibility was irrelevant.
As a result, I am in general terms in as good a position as the Childrens Court to make findings of fact. There is much to be said for that course of action.
I now consider the application in relation to each of the children in order to see if I can make the relevant findings without the need to remit all or part of the proceedings to the Childrens Court.
Application relating to LC
I turn first to the application that LC be declared a young person in need of care and protection. In the Primary Decision, I gave an initial impression that she may have been the subject of abuse. I have now had an opportunity to evaluate the evidence more carefully.
Much of the material on which the claim of LC was in need of care and protection was based came from the summary of child concern reports which were received by Care and Protection Services, a section of the Community Services Directorate. See my discussion in the Primary Decision at [68]-[78].
These were, in many cases, problematic for many were not the subject of any real investigation so that findings on which a court could rely were not in many cases available.
Such an investigation is referred to as an appraisal and many of the reports were not the subject of an appraisal. They remained hearsay allegations which were apparently not the subject of any investigation. Even when there was an appraisal, the findings of such an investigation were invariably not recorded in the Care and Protection Services Child Protection Assessment Report (the Care and Protection Assessment Report) so that they remained allegations.
Implicitly, however, they appeared to be used as if they were essentially evidence of the matters asserted. This is highly problematic for a decision as significant as the relevant one, for the removal of a child from his or her parent is a very serious step. It should not rely on mere assertion, especially where in some instances the quality of the report is suspect. In at least one case, the motive of the reporter was regarded as questionable.
Thus, between October 2004 and November 2012, there were (excluding multiple reports of the same matter) ten reports involving physical injuries to LC. Of these, five were the subject of an appraisal and for one other it was not clear whether it had been appraised or not. Although in two of the incidents, both in 2005, there was an allegation that CP had inflicted the injury on LC, there was no finding about that or the circumstances in which each was said to have occurred, whether, for example, as a result of lawful correction, accident, injury occurring while restraining LC or the like. In relation to six of them, the allegation was that the injuries had been inflicted by LC’s siblings, but there was no finding about that or the circumstances in which each was said to have occurred. In two, there was simply no reference to the person alleged to have caused the injuries.
It is notable that nine of the reports related to the period from October 2004 to September 2009. There was only one report of any injury to LC between October 2009 and May 2013. This one report related to her elder brother having “accidentally hit her against a wall” which appeared, insofar as any finding was made, to have been caused when LC was standing near a door as her brother was rushing through it. This could not reasonably, in my view, be considered physical abuse.
In June 2013, LC was reported to have received a bruised knee, alleged to have been caused by a teacher pushing her at school. The push was not said to have been deliberate. CP said that she had contacted the school and Care and Protection Services considered that, as CP was “acting protectively”, there was no need for an appraisal. Again, this cannot be said to be an incident of physical abuse.
CP said that LC was prone to accidents which would explain a comment in 2009 that she was “regularly seen with bruises and cuts”, though the time of such sightings was not stated. In the case of a report in 2008, it appears that a Child Protection worker had actually seen LC run at a door resulting in a mark to her head. This, of course, reinforces the suggestion that LC was prone to accidents and may put a different complexion on a number of the reports, especially as no results of investigation have been provided to either the Childrens Court or this Court.
Were, contrary to my view, the evidence of the other injuries reported to be accepted, they could, at their highest, be said to show that LC was subject to physical abuse, though the perpetrators and circumstances are unclear.
I note, however, that, despite 14 reports about the family, including four expressly about LC, between October 2009 and June 2013, there were no further reports of non-accidental physical injury to her. That shows, up to the date of the findings in the Childrens Court, that, over four and half years, there were no such incidents. This seems to me to show that CP has been able to protect LC from further physical abuse; indeed, the most recent report of physical injury, though not of physical abuse, accepted that CP actually acted to protect CP.
This is relevant, for it also shows that any physical abuse of LC, which occurred in the past, is unlikely to be repeated. See A and B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, SC 77 and 78 of 1995, Higgins J, 31 May 1996) at 12. I can also infer that, at least more recently, CP is willing and able to protect LC from physical abuse.
The bulk of the other child concern reports relating expressly to LC involved her displaying sexualised behaviour. This included an occasion when she was said to have been seen snatching a book from her brother, JP, “kissing him all over” and then lying on the floor and pulling her pants down. This was not the only occasion when she pulled her pants down.
No submissions were made to the Childrens Court or to me as to how such behaviour could constitute abuse or neglect as interpreted in the Children’s Act or as explained by me. A faint suggestion was that it was evidence that she had been subject to sexual abuse but without more evidence, probably including some expert evidence, this is not an inference that I am prepared to draw.
LC is a troubled child. In the Primary Decision at [265], I set out a summary of her situation asserted by Mr K Archer, counsel for the Director-General in his written submissions which included:
Intellectual disability, features of Attention Deficit Disorder, Hyperactivity Disorder, features of Oppositional Defiant Disorder, some conduct disorder features (involving violent and threatening behaviour), speech impairment/articulation disorder and a propensity to self-harming behaviour in addition at times her behaviour has been grossly sexualized indicating exposure to sexual conduct or abuse.
While the formal diagnoses are accepted, the issue in relation to the self-harming behaviour and experience of sexual conduct or abuse is subject to further consideration below.
There were only two incidents which may have constituted sexual abuse, but they were said to have occurred well after most of these reports. The first, probably in October 2012, was an incident where LC was visiting her grandmother and it was said that the grandmother became drunk and had sexual intercourse in LC’s presence. While that would be sexual abuse, it is clear that CP immediately removed LC from her grandmother’s care, said that she would not allow her back and reported the matter to Care and Protection Services, all matters that go substantially to her credit.
The other incident was said to have occurred soon after the family had returned from a period of residence in Sydney. As accommodation was problematic, LC was living with CP’s aunt. During that time, it was alleged that the aunt’s boyfriend acted in an inappropriately sexual way towards LC. He is said to have “touched her on her leg” but no further details were given.
When she found this out, CP immediately removed LC and arranged for her to live elsewhere. This may have constituted sexual abuse but, again, CP was able to act protectively and resolve the situation.
There was one other reference but it was rather opaque. It was in the notes of a school counsellor as follows:
(1)[A], brother? and his girlfriend at home play hide and seek games, including tickle on breasts.
It seems to have been assumed that it was LC’s breasts that were tickled rather than those of A’s girlfriend. In either case, this could constitute sexual abuse, but the evidence was unclear and denied by CP. There was no other corroborating evidence. Even LC’s sexualised behaviour was of a different quality.
Finally, CP said on one occasion to a Child Protection Worker that LC may have seen A and his girlfriend having sex. Again, the allegation was vague and there was no corroboration.
I am not satisfied that LC was subject to sexual abuse in circumstances where there was no direct evidence of that. Nor am I satisfied, having regard to LC’s personal challenges, that it could be inferred from her sexualised behaviour, without expert evidence showing it, that sexual abuse had, on the balance of probabilities, occurred.
Unlike the situation with some of LC’s siblings, there were no concerns expressed in the Care and Protection Assessment Report about LC concerning her health or her education. In relation to her sexualised and apparent violent behaviour, which appears to have occurred also while LC was in out-of-home care under an Interim Order, the agency then working with her, Premier Youth Works, reported that “the most appropriate and effective way of managing [LC’s relevant behaviour] is with planned ignoring” except where there is risk. This is not dissimilar to the strategy CP actually suggested, without challenge, that she applied with the children. See the Primary Decision at [197].
Apart from one criticism that CP appears not to have managed her treatment of LC’s damaged tooth in the incident where it was damaged by her elder brother rushing through a door, there was no specific criticism of CP’s ability to provide basic care for LC.
It seems that LC is aware of some cannabis use by her elder step-brother but there is no suggestion that she had used cannabis or had a desire to do so such that her safety would be compromised.
One of the submissions made was that the aspects of the behaviour of the children had “been moulded by the environment in which they were brought up”.
I accept that abuse and neglect, particularly neglect, is not necessarily attributable to a single occurrence and I accept that it can be a result of cumulative activity or circumstances.
It is, however, not sufficient to assert that the home environment is chaotic or less than ideal and then describe behaviour of the children on the assumption that there is a causative relationship between them. This must be proved by admissible and credible or reliable evidence.
The behaviours of the children, too, must be such that they are relevant to the statutory criteria. For example, there were suggestions that LC was prone to self-harm. That could, in appropriate circumstances, constitute neglect. Two incidents were mentioned; one where she had asserted that she “wants to kill people or herself” and one where, while in care, she ran toward the road, though it is not clear that she ran onto it. It is quite difficult to see how the latter could be said to have shown that CP was not willing and able to care for her; the earlier is, without more, equally consistent with the hyperbolic behaviour of adolescents. There was, so far as I could see, no reported incident of actual self-harm.
There was no real evidence of any significant harm that any neglect of LC had caused. There is no doubt, as I described above (at [87]), that LC has high needs and, in many ways, is a troubled child. That, of itself, is not enough to justify making a care and protection order.
I note that LC was the subject of emergency action on 12 July 2013. No details were provided of the basis for such action. This was starkly different from the situation of JP, GP and DP, who went up onto the roof of the family home after the Child Protection Workers had arrived on 10 July 2013, an inherently dangerous situation that CP was unable to manage. This was not the position with LC. It is not at all clear what was the “emergency care and protection or emergency therapeutic protection” (s 406(1) of the Children’s Act), that was required to justify emergency action. It was simply not asserted or explored in the Childrens Court and it could not assist in determining the issue.
It is of some concern that the Care and Protection Assessment Report for LC includes a good deal of material relating to her siblings which does not have a real bearing, none direct and little indirect, on the assessment of LC’s situation.
It appears that it was adduced to suggest that inadequacy in the care and protection of one child is of necessity inadequate care and protection of them all. This is by no means the case.
This shows that any proved abuse of LC was well in the past and that CP has been willing and able to protect LC from the rare occurrences more recently. I am also satisfied that there was no credible evidence of neglect as defined in the Children’s Act.
Accordingly, I am satisfied that a careful and thorough assessment of the evidence did not show that LC was in need of care and protection. Thus, the application for a care and protection order should be dismissed. I made an order dismissing the application and setting aside the order made in the Childrens Court.
It seemed to me that time would be needed to effect smooth and least disruptive transfer of parental responsibility, including, of course, residence, schooling and other matters. Accordingly, I stayed the orders for a period. This was suggested at the hearing and a period of eight weeks was mentioned. I think that this is too long. I reduced it to four weeks.
Application relating to JP, GP and DP
The matter as to these three children is more complicated in some ways because of the events of 10 July 2013 which were witnessed by Child Protection Workers from Care and Protection Services, including the only witness for the Director-General at trial, Ms Barbaric. I have set out the evidence in the Primary Decision at [80]-[89]. Only these three children were present: LC and NP were away at a camp.
While Ms Barbaric’s account was generally not challenged, CP did provide some explanation and further evidence.
There is no doubt that these three children generally provided CP with significant challenging behaviour with which she had to deal. She said that she had managed to settle them down earlier on 10 July 2013 but that the visit of the Child Protection Workers had made them agitated, causing them to misbehave and, in particular, to climb on the roof of the house.
While CP did not deny that the children had climbed on the roof or that, while Ms Barbaric and her colleague were there, CP did not, or was unable to, make the children come down (the evidence was unclear as to which she was asserting), they did, she said, come down after the Child Protection Workers had left. The precise timing is unclear, but the children did go back onto the roof when they saw the police and the Child Protection Workers returning and, it seems clear, CP was not able to prevent that or to get them down.
There was no cross-examination of CP on these matters, even though her version of those events was somewhat different from that of Ms Barbaric.
Nevertheless, in the Primary Decision at [619]-[626], I did not uphold the ground of appeal that challenged the finding of the learned Magistrate who found that the behaviour was dangerous and that CP was “quite incapable of regaining control”.
Her Honour then, in my respectful view, inverted the statutory requirements by concluding:
The behaviours of the children were indicative of the significant issues that these children face and the real issue in this matter is whether the mother is capable of managing them and working with others in the children’s best interests.
The first question is, in fact, whether the children had been, were being or were at risk of being subject to abuse or neglect and that must be clearly established before the court can proceed further because it is the abuse or neglect already defined which must be what the person with parental responsibility is not willing and able to protect the child from that abuse or neglect.
Mr Walker SC submitted that the events were no more problematic than young children climbing trees, which is hardly evidence of physical abuse. I do not agree.
This was not children engaging in what Mr Walker SC was submitting were, in effect, relatively benign, if strictly dangerous, behaviour.
The evidence was that the children were prone to go onto the roof of the house and that while CP’s eldest son could get them to come down, it was difficult for CP to do so and, at least while the Child Protection Workers and the Police were there, it was not possible to do so (AB445).
In my view, this incident is an occasion of a risk of serious accidental injury to the three boys which CP was unable to prevent.
The risk of physical abuse is further supported by the fact that these children were in a car driven by CP’s eldest son who was unlicensed. He is also known to use cannabis which is a risk for driving. CP was apparently unaware of his cannabis use.
I am, therefore, satisfied that these three children are at risk of physical abuse and that CP has been unable to protect them from that risk.
This, of course, does not mean that a care and protection order must be made nor that it should be made until the children are 18 years old.
Other matters about the circumstances of the children are relevant to those decisions and their relevant elements.
As a result, I consider that a further hearing should be conducted to determine whether a care and protection order should be made and for how long.
Such a hearing is clearly not limited to the specific issues of physical abuse, and the circumstances of the children more generally may be relevant. Such a hearing, I repeat, however, is not a roving commission of inquiry into CP and her whole history unless it can be said to be relevant to the best interests of the children themselves and, except in particular circumstances, current.
Thus, in my directions, I permitted some further evidence to be adduced on the issue, and only on the issue, of whether a care and protection order should be made and, if so, the terms of it, including the length. Clearly, issues of the current placement of the children will be relevant as will the current circumstances of CP.
For reasons that I do not understand, no assessment order under s 436 of the Children’s Act was sought, even though it seems to me that it would have been a useful tool. It is a report which, as I understand it, is carried out by a person with the qualifications and expertise to carry it out (s 438) and appears to be someone outside the Directorate to ensure a degree of distance from the daily involvement of Child Protection Workers who, while, no doubt, having their own expertise and often having the advantage of working with the children and parents may be seen as not having the independence that would be desirable to ensure a fair and just process.
Accordingly, I ordered such an assessment. While s 437(3) of the Children’s Act requires the Director-General to consult with CP about the assessor and the terms of reference, some concerns were expressed about the identity of the assessor. In order to make the position clear, I requested the Director-General so to consult.
Application relating to NP
Like LC, NP was not present on 10 July 2013 when emergency action was taken. Also like LC, the precise basis on which NP was the subject of emergency action was neither stated nor explored in the hearing in the Childrens Court.
Nevertheless, NP is also a child facing very serious challenges. The summary of his situation, which I reported in [265] of the Primary Decision, was as follows:
He has significant global development delays and a mild intellectual disability. His language development was noted as delayed (his speech was often unintelligible) and had comprehension difficulties. Dr Bragg assessed him as functioning at around the 3-3 ½ year old level. She further stated ‘[NP] has a constellation of features which could be due to Velocardiofacial Syndrome including cardiac murmur, speech problems, hypotonia, developmental delay, facial features’. He has a history of behavioural difficulties including head banging and non-compliance. Dr Bragg diagnosed chronic developmental trauma and exposure to violence. Sexualized modes of expression have been noted.
Dr Bragg is a Staff Specialist at the Child At Risk Health Unit at the Canberra Hospital specialising in Paediatrics, in which discipline she has post graduate qualifications. She is also a lecturer at the Australian National University Medical School.
She examined NP at the Unit on 12 August 2013. She noted that he had eye problems which had not been investigated by an ophthalmologist. She also found that he had an “overt sadness” and concluded that he was “at high risk of serious mental health problems” in which early intervention was important.
Several medical interventions had been recommended in the past; an investigation of a heart murmur, and a cranial ultrasound. It does not appear that these were conducted. He was seen initially in 2008 by a medical practitioner but was not taken to follow-up appointments. His development was delayed. That, of course, may not be a major problem but it does need investigation to ensure that, where it can be addressed to ensure he receives appropriate treatment, that is done.
Again in 2009, he was seen at the emergency department of a hospital and was noted to have a systolic murmur. After x-rays, he was recommended for paediatric follow-up with a cardiac ultrasound. I have no evidence of the risk from these conditions and, in particular, whether the failure to follow up in either case put him at risk of significant harm.
The pattern was repeated in 2013, when he was seen at Winnunga Aboriginal Health Clinic in 2013 and again recommended referral for care which was apparently not followed up by CP.
The risk of serious mental health problems without the necessary intervention does seem to me, in the light of the other evidence, to constitute neglect, being the absence of relevant treatment and the risk of significant harm. CP simply did not seem to know what treatment NP had and what he required.
Again, as with the other boys, this does not mandate that the care and protection order should be made, but it does raise the issue sufficiently for further investigation.
The orders I made in respect of the assessment order and the hearing for JP, GP and DP also applied to the hearing in respect of NP.
Costs
I turn next to CP’s application for costs.
Costs in proceedings can only be ordered when a court is given the statutory power to make such an order; it is said that costs are a creature of statute: Quach v Butt [2017] ACTCA 4 at [27].
Ordinarily, when a statute empowers a court to award costs, the court is given a wide discretion, though it must be exercised judicially: Lewis v Chief Executive, Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196 at [13]; Bateman v Fairfax Media Publications Pty Ltd (No 2) [2013] ACTSC 95 at [7]. What has been described as the “usual order”, however, is one that orders that the successful party’s costs be paid by the other, unsuccessful, party or parties, though it is a rule that is subject to the wide discretion of the court: Construction, Forestry, Mining and Energy Union (CFMEU) v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10 at [47]-[50].
It is, however, always important to have regard to the terms of the statutory provision which grants the court jurisdiction to award costs.
In the case of proceedings in the care and protection jurisdiction of the Childrens Court, the Children’s Act makes particular provision; that is contained in Pt 19.6 of that Act which is as follows:
Part 19.6 Costs
724 Costs – parties bear own unless court orders otherwise
(1)This section applies to a proceeding under the care and protection chapters including –
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection chapters.
(2)The parties to a proceeding must bear their own costs unless a court exercising jurisdiction under this Act orders otherwise.
725 Costs – frivolous, vexatious, dishonest application
(1)This section applies to a proceeding under the care and protection chapters including –
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection chapters.
(2)A court exercising jurisdiction under this Act may, on application or on its own initiative, order the payment of costs in a proceeding if satisfied that –
(a) an application in the proceeding is frivolous, vexatious or dishonest; or
(b) there are exceptional circumstances that justify the order.
(3)A person who applies for an order for costs under this section must give a copy of the application to the party from whom the costs are sought.
726 Costs – parties bear own costs unless order otherwise
(1)This section applies to a proceeding under the care and protection chapters including –
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection chapters.
(2)A court exercising jurisdiction under this Act may, on application or on its own initiative, order someone’s costs be paid if the hearing of a proceeding is adjourned because –
(a) someone else required to attend the hearing did not attend; or
(b) someone else contravened a direction or order of the court.
(3)A person who applies for an order for costs under this section must give a copy of the application to the party from whom the costs are sought.
727 Costs – how court may share costs
(1)This section applies if a court exercising jurisdiction under this Act has made an order about costs under section 725 or section 726.
(2)The court may order costs be paid by or shared between the parties in the way the court orders.
(3)However, if the Childrens Court makes an order for the payment of costs in a proceeding, the costs allowed are up to 50% of the costs that would be allowed if the proceeding had been heard in the Supreme Court.
I have to say that these provisions are not helpfully drafted. They are a little obscure, but I do consider that the legislative intent can be discerned if the interpretation of them is approached with some care. All references to sections in this part of my reasons are to sections of the Children’s Act, unless specified otherwise.
Mr Walker SC submitted that ss 724 and 725 each provided independent heads of power to award costs.
That is to say, the prima facie position outlined in s 724 was that each party was to bear their own costs unless the court exercised a discretion to order otherwise. He submitted that the reference to “orders otherwise” gave the Court power to make a costs order and that the discretion it gave was unconfined. In particular, he submitted that such a discretion was not subject to the limitations expressed in s 725. He submitted that the distinction was that s 725 made provision for the court to exercise its jurisdiction on its own initiative. That, he submitted, made a relevant distinction between the two provisions. Mr Archer submitted to the contrary.
Regrettably, I do not agree with the submissions of Mr Walker SC. Section 724 makes no reference to a party applying for costs or even the court exercising its power on its own initiative. It simply sets out the general rule that each party should bear his, her or its own costs, with one exception.
The exception is where the court otherwise orders. To determine what this means is, of course, a matter of statutory construction. This requires the court to look at the text of the statute, but context and purpose are also important: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 184 CLR 355 at 384; [78].
In this case, it may be unclear as to whether the words “unless a court exercising jurisdiction orders otherwise” grant a power to order costs or not.
That they do seemed to be implicit in what Mossop AsJ said about the section in W v Director-General, Community Services Directorate [2014] ACTSC 404 at [86].
Were there no other provision in the Children’s Act, then this provision would have to be given a meaning. Generally all words in a statute should be given a meaning if possible: Commonwealth v Baume (1905) 2 CLR 405 at 414. These words could either constitute a power to make an order for costs by necessary implication or necessarily imply that the general power under r 1721 of the Court Procedures Rules applies. As noted above (at [20]), these rules are equally applicable to the Childrens Court in its care and protection jurisdiction.
It may, however, not be necessary to resolve this particular matter for, in my view, the Children’s Act, properly construed, resolves this matter.
I turn then to look at the Children’s Act as a whole in order to determine the proper interpretation of these provisions. This means that, in particular, ss 726 and 727 must also be considered. When that is done, it becomes clear in my view that the sections are to be read as an integrated whole. That is to say, any “order otherwise” must be an order under ss 725 or 726. My reasons for so finding are as follows.
It is relevant that the first sub-section in each of ss 724, 725 and 726 is in identical terms in each case as to when the section applies, strongly suggesting that the three sections are intended to apply in the same circumstances.
When the discretion of the court is unconfined as to costs, general approaches or guides to the making of such orders are to be found in the authorities. Thus, for example, it is said that applications for an adjournment will often require a court to consider whether the imposition of terms, including as to costs, are required: R v Moseley (1992) 28 NSWLR 735 at 738; Brdar v Kolo [2001] SASC 155 at [139]. That is to say, a general power as to costs already includes the power to order a party to pay the costs of an adjournment, including the costs thrown away as a consequence.
Similarly, there is authority for an order for costs to be made against a party making a frivolous or vexatious application where otherwise the party would not be ordered to pay costs: Bowyer v Wood [2007] SASC 327; 99 SASR 190 at 209-11; [68]. Again, the general power to order costs includes a power to order costs against a party making a frivolous or vexatious appeal.
Thus, it is unclear why an unconfined power to make an award of costs in s 724 would need to be replicated in s 725 or s 726 when those are already circumstances recognised at law where a costs order could be made under an otherwise unconfined power to order costs be paid by a party.
While it is not inconceivable that there could be concurrent provisions applying to the same circumstances, there does not seem in the statute to be a basis for finding a sensible reason to find that this is what the provisions are intended to provide.
Given this background, it appears that ss 725 and 726 must be intended to limit the jurisdiction under the Children’s Act for making orders for costs and to provide the only basis on which the court will exercise the power to award costs.
This is reinforced by the terms of s 727 of the Children’s Act which does two things: it permits the court to apportion costs between the parties and it sets out a scale by which the costs are to be paid where the order awarding costs is made in the Childrens Court. The section, however, is expressed to apply to orders made under ss 725 and 726.
There is no apparent reason why, were s 724 to provide for a free-standing power to award costs, s 727 would not have applied the scale of costs it mandates to that section also. The reference in it only to ss 725 and 726 is a powerful basis for saying that the power to order otherwise must refer to the power expressed in those sections.
As to apportionment, also referred to in s 727, there is ordinarily an inherent incident of the power to award costs that the court may apportion the costs between the parties: Morris v Riverwild Management Pty Ltd [2009] VSC 439 at [13]. To make a statutory specification of this power is a strong pointer to the conclusion that ss 725 and 726 are intended to provide for all the occasions when the court may otherwise order as contemplated by s 724(2).
This is strengthened by the provision in s 727(3) concerning the scale of costs payable when an order is made under ss 725 or 726. The costs payable in the Childrens Court are, in the absence of any other provision, regulated by r 1722 of the Court Procedures Rules. This, however, is determined by reference to a “relevant amount” (r 1723) which is, of course, not applicable in care and protection proceedings. There is, therefore, a considerable difficulty in identifying the scale of costs that would be applicable were an order to be made under s 724(3) as a free-standing provision.
Further, there is no reason why a greater percentage of the Supreme Court Scale of Costs should be applied to the costs ordered under s 724 than in the circumstances set out in ss 725 and 726 which are circumstances that would seem actually more likely to attract the greater percentage than would be allowed in other ordinary circumstances of costs awards.
Finally, I refer to the submission that the reference in ss 725 and 726 to the court acting “on its own initiative” was a relevant distinction that made s 724(3) a different, free-standing head of power. There is, however, no reference at all to how a court might be moved to make an award of costs under s 724(3), by application or on its own initiative, were it the making of a power to do so.
Thus, for example, there is no reference in s 724(3) to a party making an application. Most costs orders are made by a party applying for them. In some jurisdictions, the court is given power by rule to make such orders of its own initiative: see, for example, r 1.40 of the Federal Court Rules 2011 (Cth) and r 1.10 of the Family Court Rules 2004 (Cth). I am not aware of any authority that a court with power to order that a party pay another parties costs cannot so order on its own initiative. I do not consider, however, that there is to be implied in s 724(3) that an order for costs under that section may only be made on application by a party such that I can hold that it is a different power to that exercised under ss 725 and 726 because these latter sections refer to the court acting on its own initiative.
Indeed, if there was to be such a differentiation, one might expect that s 724(3) would refer expressly to an order made “on application” which would make the alleged differentiation clear.
I am further fortified in my view that, independently, McWilliam AsJ, in a recent decision to which my attention was only recently drawn, though not by the parties, despite my invitation to them to draw my attention to any relevant authorities after I adjourned, has come to the same conclusion to which I have reached. In Director-General Community Services Directorate v HS [2018] ACTSC 6, her Honour held that the power to order costs otherwise as provided for in s 724 refers only to the occasions for which provision is made in ss 725 and 726. Her Honour also found that the words “orders otherwise” as, for example, expressed in s 724(3), could not provide a free-standing, independent, statutory authority to make an award of costs. I prefer to leave that question to another day. For the reasons I have set out above, however, that is not how it is to be interpreted in the Children’s Act.
Accordingly, an order for costs in this case, as sought by CP, could only be made if I find that s 725 applies, as s 726 is not relevant.
Costs – exceptional circumstances
Clearly, the appeal was not frivolous, vexatious or dishonest, so, in order to qualify for an order for costs, CP must show that there are exceptional circumstances that justify the order.
Mr Walker SC, did, however, refer to some exceptional circumstances in the case. He submitted that the volume of material provided by the Director-General was so extensive but so significantly targeted to the real issue in the proceedings that it made the proceedings exceptional. This, he submitted, was compounded by the fact that I had found so much of the material not to be relevant.
The notion of “exceptional circumstances” is, as Wilcox J described in Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 at 81, “a criterion which is both vague and subjective” and “[l]ike beauty, ‘exceptional circumstances’ lies in the eye of the beholder”.
It is, however, to be construed in the way Lord Bingham CJ explained in R v Kelly [1999] 2 All ER 13 at 20, as:
an ordinary English adjective, and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, as unusual, or special or uncommon. To be exceptional, a circumstance need not be unique or unexpected, or very rare; but it is not one that is regularly, or routinely, or normally encountered.
It is, nevertheless, important to bear in mind that, while provisions such as s 725 of the Children’s Act must be construed in the context of the interests of justice, such a consideration must be applied with care.
Thus, as pointed out by Basten JA, with whom Beazley and Giles JJA agreed, in FMP Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 at [210]:
…the requirements of justice should not be allowed to expand an exception to the general rule so as to undermine the rule itself.
Section 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that costs in care proceedings under that Act cannot be ordered “unless there are exceptional circumstances that justify it in doing so”. This is a similar provision and authority on it may be of assistance in construing s 725(2)(b).
That section was the subject of detailed consideration by Levy SC DCJ in Re A Foster Carer v Department of Family & Community Services (No 2) [2018] NSWDC 71. His Honour made reference to an earlier decision of the President of Children’s Court of NSW. His Honour noted at [13], that “exceptional circumstances” are not “exhaustively defined or limited”’. Indeed, they are not defined at all. That applies also so s 725(2)(b) of the Children’s Act.
His Honour continued at [14]-[15]:
In these proceedings, I recognise that the exercise of a discretion to award costs in exceptional circumstances must be exercised judicially, according to the rules of reason, fairness and justice, not arbitrarily, and not influenced by considerations of benevolence or sympathy.
As cited in Knoll, the relevant considerations include the evidence adduced in the proceedings, the conduct of the parties, and the ultimate result, following Knight & Clifton [1971] Ch 700, whilst also recognising that the purpose of an order for costs is to compensate the person in whose favour the order is made, and not to punish the unsuccessful party: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33, at [34]; Douglas v Lewton Pty Ltd (No 2) [2007] NSWCA 90, at [22].
His Honour reviewed a number of authorities and also made some observations, from which review and observations, the following may be noted:
-the term “exceptional circumstances” usually means something that is “quite out of the ordinary”: Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 at 186;
-the circumstances must be exceptional to the particular case: R v Dunwoodie [1978] 1 All ER 923 at 931;
-what are exceptional circumstances cannot be easily defined and will depend on the facts of each individual case: R v Okinikan [1993] 1 WLR 173 at 176;
-consideration can and must be given to all the relevant circumstances: R v Lowery [1993] Crim LR 225;
-the term should not be construed narrowly; and
-it is not necessary to review the individual factual circumstances of all the decisions on like provisions.
In this case, I consider that there were exceptional circumstances that justify an order that the Director-General pay CP’s costs of the appeal to date, for the following reasons.
The proceedings were based on a good deal of material that may well have been relevant, but it was not organised in a way that appropriately addressed the statutory criteria. It was capable of being described as a more wide-ranging inquiry of CP’s parenting capacity. This was odd when no assessment order under s 436 of the Children’s Act had been prepared. Further, the evidence did not focus on the statutory criteria. Thus, it was difficult to identify what the abuse was that was asserted would justify a care and protection order. This was also true of the claim of neglect and little evidence that addressed the issue that was needed to be proved of “significant harm” referred to in s 343 of the Children’s Act.
In addition, the need for the appeal arose from an approach by the court below to CP’s case which was procedurally unjustified and which diverted much of the attention of the proceedings from matters that needed proper attention, for example, by reliance on the earlier proceedings (see the Primary Decision at [456]-[462]), the evidence of the earlier abusive relationship between CP and BP as part of the relevant evidence of abuse or neglect of the children (see the Primary Decision at [417]-[473]) and the evidence about the family’s move to Sydney (see the Primary Decision at [476]-[499]).
Finally, the fact that the reasons were inadequate because, not only did they fail to engage with the evidence at the required level, but they failed to make the essential findings about abuse or neglect that formed the foundation of the jurisdiction of the Childrens Court.
I do not, however, consider that the Director-General should pay the costs of the proceedings in the Childrens Court.
While some of the matters to which I have adverted are relevant, the adducing of the evidence in the Childrens Court was appropriately done or, where inadequate, either by agreement between the parties, such as limiting the number of witnesses, or by the inadequacy of CP’s representation.
These are, perhaps, exceptional matters, but they do not justify the awarding of costs for the proceedings in the Childrens Court. Nothing else was referred to by counsel.
These reasons show that there must be a further hearing in this Court. I do not consider that I should determine, at this stage, whether there should be an order for costs of the further hearing. I will, therefore, restrict the order at this stage to the costs of the proceedings in this Court to date.
Further proceedings
As noted above, there must be further proceedings in this matter. It is, of course, important in the interests of the subject children not to alter the status quo pending those proceedings.
As noted above (at [12]), while I could make interim orders to preserve the current arrangements for the exercise of parental responsibility for the children other than LC, I do not consider it is appropriate to do that at this stage. The present orders will not be disturbed unless and until they are set aside or amended if the further proceedings justify me doing so.
The children are adequately protected by me not making any order that may affect the orders currently in force from the Childrens Court made on 24 June 2014. For more abundant caution, however, as helpfully suggested by the Director-General’s counsel, when I made the orders on 6 April 2018, I made a declaration that confirmed that those orders remained effective until further order.
| I certify that the preceding one hundred and ninety-two [192] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 20 July 2018 |
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