NB & Ors v SB & Ors

[2020] HCATrans 168

[2020] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2020

B e t w e e n -

NB

First Applicant

MB

Second Applicant

PB

Third Applicant

and

SB

First Respondent

MS

Second Respondent

CF

Third Respondent

RF

Fourth Respondent

CEO, TERRITORY FAMILIES

Fifth Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 11.34 AM

Copyright in the High Court of Australia

____________________

MR A. WYVILL, SC:   If it pleases the Court, I appear for the applicants.  (instructed by Piper Ellis Lawyers)

MS R.J. WEBB, QC:   If it please the Court, I appear with MS S.G. OZOLINS for the first respondent.  (instructed by Margaret Orwin)

MR A. BOE:   Your Honours, I am appearing for the third and fourth respondents with MS P. MORREAU in Sydney and MR B.P. DIGHTON by video link from Brisbane.  (instructed by Michael Whelan Associates)

MR D.C. McCONNEL:   Your Honours are unable to see me, I am appearing with my learned friend, MR P.J. MORGAN, for the second respondent.  (instructed by Katherine Women’s Legal Service)

BELL J:   Thank you, Mr McConnel.  Mr McConnel, you are content for the matter to proceed in circumstances where we can only hear you - you are not on video link?

MR McCONNEL:   Your Honour, I am in the same room as Mr Wyvill, so after Mr Wyvill finishes I will take his place in front of the camera.

BELL J:   Thank you.  Yes, very well.  Yes, Mr Wyvill.

MR WYVILL:   Thank you, your Honours.  Your Honours, the proposed appeal concerns a narrow but important point about the construction of section 8 of the Act, and particularly, but not only, its relationship with the paramountcy principle in section 10 and also in section 90 in relation to jurisdiction of the court.  May I proceed firstly by outlining our points about construction, dealing then with how it arises in the decisions of the courts below before addressing the issues of special leave.

BELL J:   Yes.

MR WYVILL:   If I can take your Honours first then to the application book at page 278, where the relevant extracts of the Act are set out.  We make the following points about those provisions.  Firstly, by reference to section 4(b), your Honours can see that there is a preferred mode for advancing or promoting the wellbeing of the children, that is by assisting families.  Your Honours will then note, secondly, that section 5 confirms that the Act is capable of harmonious construction, to achieve harmonious goals of the Act, and that can be seen particularly in relation to:

the powers of the Court –

that are referred to in (a)(iii) of section 5, so it should be of no surprise that the Act is capable of being given a single harmonious goal, or capable of being construed to achieve harmonious goals.

Thirdly, turning to section 6, which introduces the underlying principles, your Honours will see in subsection (2) that, as far as practicable, those exercising a power or performing a function must uphold those principles, leading, then, fourthly, to section 8, and particularly subsection (4). 

Our contention is that subsection (4) creates what is, in effect, a presumption in favour of the eventual return to family. It precludes that outcome unless the court is satisfied, firstly, that it is not practical and, secondly, that it is not in accordance with the child’s best interests, as explained in section 10, for the child eventually to be returned to his family.

It is two steps that require the identification of a practical means, if there is one, of returning a child to the family and, secondly, the assessment of that means of return to determine whether or not it is in the child’s best interests to pursue that.  We say the presumption operates so that unless there is a conclusion that it is not it has to be pursued.

The role of section 10 in relation to section 8(4) is clear from the terms of section 8(4) itself.  It is given a role to play.  There is no reason, in our submission, to then read in a further restriction on the operation of section 8, particularly by reference to section 10.  Its role is made clear in express terms in subsection (4).

The fifth construction – the next point we make is that this construction is reinforced by section 20(b) of the Act, which your Honours will find on page 281.  Subsection (b) makes it clear that a child will not be in need of care and protection and hence taking away the authority to intervene in the affairs of the child, paragraph (b), unless:

no family member of the child is willing and able to care for the child –

So if the members of the family that are assessed to be willing and able to care for the child and, obviously, the underlying principles are material there, then the jurisdiction to intervene in the life of that child disappears, in our submission.

The final point we make about construction is that upholding section 8(4) in accordance with its terms is not inconsistent with the paramountcy in section 90 of the Act.  If your Honours turn to section 90(1), on page 283:

the Court must regard the best interests of the child to whom the proceedings relate as paramount.

Our submission is that upholding each of the underlying principles, as far as practicable, as set out in Division 1.2, is the means by which Parliament has intended the court is to uphold the paramountcy of the child’s best interests.

If I can then take your Honours directly to the Local Court judgment.  Before taking you to the specific parts of it, may I just identify two matters of common ground.  The first is that the Local Court’s conclusion that the foster carers form part of the family is acknowledged to be wrong as a matter of law.  Secondly, and this is common ground, based on binding Court of Appeal authority in the Norther Territory, the threshold for vitiating error was the presence of a real, not a mere or slight, possibility that that error of law affected the decision.  Those two matters are common ground. 

If I can then take your Honours to the decision of her Honour at first instance.  Your Honours will find that in the application book at page 68.  It is important to note in that section, which goes over two pages, that there is no reference to section 8(4).  If your Honours just keep a finger at page 68 and turn back to page 60, that is the only reference there is in the judgment to section 8(4), and that is in the section under “Family” which it is acknowledged is affected by error.  That was just part of her Honour’s consideration that the foster carers were part of family. 

So there is no express reference to the application of section 8(4) on the basis that the foster carers do not form part of the family of the child and you can see that at 138 through to 145.  Nowhere there is there a reference to her Honour applying section 8(4) on the basis that her decision to place the child in the – giving long‑term parental responsibility to the foster carers would necessarily exclude the child from his family for the balance of his childhood. 

The critical element, of course, to be brought to account by her Honour at that point was the fact that this would result in, or was likely to result in, the child suffering the impact both as a child and as an adult of growing up outside his family which, of course, is what section 8(4) is directed to avoid.  We can see that there is no implicit dealing with section 8(4) by the terms of the first line in paragraph 142 at page 69:

This decision in no way diminishes the role of the young boy’s biological family.

With very great respect to her Honour that is, in our submission, plainly wrong.  The decision had the direct impact of excluding that young boy from his family for the balance of childhood and that clearly and obviously diminished the role of his biological family in his life. 

BELL J:   But, Mr Wyvill, it is necessary to read her Honour’s reasons as a whole.  Her Honour has, at paragraph 140, concluded that there is a risk, that is not remote, of harm to the child by reason of the severance of the secure attachment to the foster parents and, read in context, as I would understand it, the risk that that would do the child real harm and satisfactory attachment to the aunt and uncle may not occur.

So that when one comes to her Honour’s reference in paragraph 142 to not diminishing the role of the child’s biological family, that is in the context of her Honour’s findings generally that the foster carers would seek to promote continued contact with the family and the like.  It is the difficulty, Mr Wyvill, of taking a sentence out of lengthy reasons which do include a finding by the primary judge of, in her Honour’s view, a real risk of harm to separate the child in light of events that have occurred.  

MR WYVILL:   Indeed, your Honour.  But two points in response to that.  That real risk of harm should not have been assessed in the abstract as it was.  You can see that if you go back to the evidence that her Honour relied upon at paragraphs 91 and 92 where that is the evidence of the expert which her Honour favoured which is the basis of that finding. 

BELL J:   Yes.

MR WYVILL:   You can see, your Honour, that that is expressed in general terms – not by reference to any particular mode of reuniting with the family.  It was expressed in general terms.  You can see, in fact, that the expert actually contemplates that there might be a specific possible mode of return to the family by the third sentence of the third line in paragraph 92:

which needs to be well‑managed if it if he is to transition –

That was the point her Honour had to investigate.  What are the practical modes, specifically, of getting this child back to his family?  Once a practical mode is identified, let us assess – specifically in relation to that – whether or not the child’s best interests are advanced by pursuing that.  That is the first point.

The second point, your Honour, is that clearly there is a risk to a child who has been with a foster carer for some years in relation to harm from a loss of that connection.  But there are two points to make about that.  The first is that section 8(4) operates on the basis that that risk will generally have to be taken.  The second point is that if you are going to properly discharge the function under the Act, you need to bring the counterbalancing matter to account, which her Honour did not do. 

It is not the question of access with the family being preserved by the goodwill of the foster carers.  The question is the impact to the child of growing up outside the family, and that was never acknowledged, let alone brought to account.  In terms of the expert evidence, your Honour is right to draw my attention to that.  That expert evidence is only useful insofar as it is, firstly, consistent with the Act and, secondly, directed to assisting her Honour as to how - assisting her Honour to decide the matter.  If your Honours were to look at paragraphs 91 to 93 ‑ ‑ ‑ 

BELL J:   Mr Wyvill, before we go more closely into her Honour’s reasoning, you draw attention to the error in relation to the finding that the foster parents were members of the child’s family for the purpose of the statutory scheme.  Now, that error was recognised and was corrected by Justice Southwood and then before the Court of Appeal. 

One does at some point have to look at the circumstance that five judicial officers have given close attention to the facts, the error at first instance having been corrected by the time the matter came before his Honour Justice Southwood and all had concluded that the finding of the real risk of harm supported the conclusion that this was a case for the purposes of 8(4) where there is acknowledgement that it is, as far as practicable, one may provide for continued contact for the child and the child’s family in the event of removal.

I mean section 8 recognises there will be circumstances in which a child will be removed from the family and every judge who has looked at this matter has concluded that the orders made were appropriate, that is, that the real risk of harm justifies a course that sees the child growing up outside his family. 

You have identified an error that has been corrected below.  What is the basis you say that this Court would – in circumstances where it is accepted that there will be occasions when it is appropriate to make an order for the child’s protection and to have the child raised outside the family, what general principle is it that this Court is going to determine that would bring that about if the result that you seek? 

MR WYVILL:   Your Honour, it is this.  It is the role of the underlying principles other than section 10.  It is the decision in REF, which we referred to, which has been applied by all judges save Justice Graham who said it was wrong at 160 of his judgment.  That is the important point of principle here. 

We contend that section 8, and importantly also section 12, the Aboriginal Placement Principle, are not subject to an implicit further qualification which permits the Tribunal, or the court below, not to go through the process of making findings of fact about the practicality of returning the child to the family, and whether or not that is in the child’s best interest.

Those findings of fact, in our submission, have to be properly done by reference to the terms of the Act.  That is the important point of principle.  It is the role of these underlying principles except section 10, and your Honours will know that the royal commission that was held here recently - a joint Commonwealth and Territory royal commission, and hence gives this matter - the operation of this Act national significance - the reforms proposed by that commission have been adopted by the Territory Parliament, and they have sought to implement them by introducing amendments to these underlying principles. 

Our submission is that they are based upon an understanding, a correct understanding, of the operation of those underlying principles, which is established by the earlier authorities, and which is inconsistent with REF, that is, you do not read in any further ‑ ‑ ‑

BELL J:   I am sorry, Mr Wyvill, but where is it in the judgment of the Full Court that you find a disregard for the principles?

MR WYVILL:   You find it, your Honour, if you turn to the Chief Justice’s judgment at page 205.  You will see his Honour, at the top of the page - sorry, 206, paragraph 77, his Honour adopts with approval the decision in REF, and the particular sentence of concern is the very last one in that passage of REF, which says:

that the Aboriginal Child Placement Principle ‑ ‑ ‑

BELL J:   I am sorry; which paragraph are you in?

MR WYVILL:   Paragraph 77 on page 206.

BELL J:   Thank you.

MR WYVILL:   You will see his Honour adopts the statement in REF, which is quoted there.  Your Honours will see in the last sentence that Justice Barr in the case of REF said:

Because the best interests of the child are mandated as the paramount concern in decisions involving a child, it follows logically that the Aboriginal Child Placement Principle is an ancillary concern.

Section 12, unlike section 8, is not expressly qualified by section 10.

GAGELER J:   Mr Wyvill, how does section 12 assist the outcome that you contend for on the merits?

MR WYVILL: Your Honour, if the construction there of section 12 is correct, it does not. Our argument is that the construction is wrong. If that is correct, then her Honour has miscarried both under section 8 and section 12.

GAGELER J:   Yes, but if she applied section 12 correctly, how would that assist the outcome for which you contend?

MR WYVILL: That begs the question that she did not – we say that if the analysis – I will start that again. She applied section 12 on the basis that the authority of REF is correct.  She did so in terms.  We say that REF is wrong – that section 12 is not qualified by section 10. If that is right, she did not fulfil that function.

BELL J: Accepting that to be the case for present purposes, the question that is being pressed in the circumstances of this case is how, if one were to redo the exercise, would section 12 produce the different result, that is, that the child be placed with the aunt and uncle?

MR WYVILL:   Is your Honour happy for me to continue in the light of the beep?

BELL J:   Yes, just to answer that question, yes.

MR WYVILL: Thank you. I accept that practically it does not because if we establish that section 8 was not complied with it does not make any difference whether section 12 - because there was not a competition here between indigenous and non‑indigenous.

BELL J:   Yes.

MR WYVILL:   The competition here was between two white couples and, therefore, section 8 practically governs the matter.

BELL J:   Yes, thank you.  Thank you, Mr Wyvill. 

Now, I should have noted earlier, there is a submitting appearance for the fifth respondent.  Just bear with me one moment.  Ms Webb, I think you appear as the separate representative for the child.  I think your mute button is on, Ms Webb.  We cannot hear you.  Ms Webb?

MS WEBB:   I am having trouble with sound.  I hope it has been rectified.

BELL J:   That is better.  It has been rectified. 

MS WEBB:   Yes, your Honour, I do appear…..  Thank you.  At the heart of this special leave application is the consideration of the best interests of the child.  Those best interests require certainty that the order giving long‑term parental responsibility for the child to the third and fourth respondents was made pursuant to properly construed legislation as applied to the relevant facts. 

The order made by the Local Court of the Northern Territory sitting in its Family Matters jurisdiction on 11 April 2019, and subsequently upheld by the Supreme Court and the Court of Appeal, has effect until the child is 18 and that is until he is an adult.  If there is any uncertainty that the order was not properly made, the effect on [the child] is long‑term and profound.

BELL J:   Ms Webb, as I understand it, the view was taken in the Court of Appeal that Justice Southwood had reviewed the findings of the court below and had come to his Honour’s satisfaction that the order was properly made, that is the order that the child be in need of protection until 18 and live with the foster parents.  I raise with you I think the same matter that I raised with Mr Wyvill, that the matter has been examined in terms of the merits with some close attention to detail by the Court of Appeal by Justice Southwood and the primary judge.

MS WEBB:   Your Honour ‑ ‑ ‑

BELL J:   …..has concluded that there is a risk to the trial of removal at this time.

MS WEBB:   Your Honour, this may well go to the heart of our submission here.  In essence, it is that if there was an error in the Local Court that infected that order, not either at the – both at Supreme Court level or an appeal, and if there is that possibility, then it deserves the consideration of this Court.  But if this Court is satisfied that there was no error, and clearly no error, then that is it. 

Our submission really is the certainty of “this child requires” can be provided by this Court either granting special leave and considering the matter on appeal, and at that point may decide that the matter was correctly decided below, or by deciding on this application that the decision of the Court of Appeal that upheld the decisions below was clearly correct.  So that is why we say in our submission we do not oppose a grant of special leave, but if there is any uncertainty as to the decision then it would be – and there is any doubt ‑ ‑ ‑

GAGELER J:   Do you say there is doubt, and what is the doubt if you say there is?

MS WEBB:   Yes.  Your Honour, if I can go to that and perhaps if I can set out what was before the Local Court and it was an application by the CEO initially to be an order that - a long‑term parental responsibility order in favour of the CEO until [the child] was 18, and a care plan that proposed he continue to live with the foster carers for that period.  That is the third and fourth respondents.

After the CEO became aware that [the child’s] paternal aunt was seeking responsibility for his care and upbringing, the application was amended seeking a short‑term parental responsibility direction for two years in favour of the CEO, during which time it was proposed that [the child] be transitioned into the care of his paternal aunt and moved to Victoria.  The paternal aunt and her husband sought orders for parental responsibility for care and control and [the child’s] father and mother unequivocally supported [the child] being raised with his uncle and aunt in Victoria.

The child’s representative’s position was that a long‑term parental responsibility direction in favour of the CEO was required and that would allow [the child] to transition from foster carers to the care of his aunt and uncle.  Now, the foster carers ‑ ‑ ‑

GAGELER J:   Ms Webb, we are generally aware of the circumstances.  Where do you say the doubt lies?

MS WEBB:   There is a live question, your Honour, as to whether the order that was made by the Local Court was infected by her Honour’s erroneous view that the foster carers were part of [the child’s] family for the purpose of the Act, and that this was an error of law is clear.  The Supreme Court said so and it was confirmed by the Court of Appeal.  Her Honour states, without further explanation, that a decision does not turn on the interpretation of “family” but the best interests of the child.

BELL J:   Ms Webb, the error is accepted.  It has been corrected below and the Court of Appeal has affirmed the orders of Justice Southwood, who identified the error.  What is the uncertainty that remains, that error having been corrected, on an appeal in which the appellate court reviewed the findings and was satisfied as to the correctness of the orders that were made?

MS WEBB:   Well, your Honour, perhaps the concern remains that her Honour clearly viewed the task that she undertook with the lens that the foster carers were family.  When it got to the Supreme Court that was, in essence, corrected, but the Supreme Court, in undertaking its task, did so on the basis that the very relevance of Part 1.3 did not apply to the court.  So that raises some doubt as to whether it was correctly reconsidered at the Supreme Court level and then there is the question - the Court of Appeal said that approach was wrong but, nonetheless, we accept that the error has been corrected.  That is where the possibility comes in, in our submission, your Honour.  Our position is, whichever way, it requires the certainty of this Court.

GAGELER J:   Ms Webb, can we just analyse that for a moment.  Mr Wyvill told us that there is no dispute between any of the parties as to the correct approach to error of law.  It has to be a vitiating error, as understood in the authorities of the Northern Territory.  The only question is whether it is a vitiating error, is it not?

MS WEBB:   Yes, it is, your Honour, and that is why we say – and our submission is ‑ ‑ ‑

GAGELER J:   You have had four judges now of the Supreme Court of the Northern Territory look at it and say it is not a vitiating error.

MS WEBB:   Your Honour, and for different reasons.  Perhaps, your Honour, our submission is simply this, and it is that if there is any doubt that the order that was made by the Local Court, confirmed by the Supreme Court and the Court of Appeal, was vitiated by the erroneous approach to the meaning of “family”, it is in his best interests for the question to be finally determined by this Court, and by that we mean either hearing it on appeal or saying clearly that the decision is clearly correct.

BELL J:   Yes, thank you.  Mr McConnel, you appear for the mother.  Sorry, Mr McConnel, there is some difficulty with the audio.  Can you just check whether your mute button is on?

MR McCONNEL:   I apologise, your Honours, we had the mute on.  Yes, I appear for the mother.

BELL J:   Yes.  Yes, Mr McConnel.

MR McCONNEL: The essence of my submission, your Honour, it is clear that we adopt and follow the submissions of the applicant, but we seek to emphasise in addition to the submission as to error in relation to the meaning of “family”, an error in relation to the construction and application of the test for the Aboriginal Child Placement Policy reflected in section 12 of the Act.

The submission, your Honours, is that section 12 is a mandated decision‑making process for both the CEO of Families and also for the court. It is not expressed in normative terms, and nor should be construed as such. However, both his Honour Justice Southwood and his Honour Chief Justice Grant, in their separate judgments, referred to section 12 as being expressed in normative terms. What we say about section ‑ ‑ ‑

BELL J: …..Mr McConnel, do you accept, as Mr Wyvill did, in the circumstances of this case the question of the role of section 12 in the exercise would not produce a different outcome?

MR McCONNEL: Your Honour, what I would say in relation to the application of section 12 is that what is important at the hearing level is that the fact‑finding exercise be undertaken as prescribed by the Act, and that was not done in this case, and nor has it been done at any of the appellate levels. So what section 12(3) instructs is that any person exercising a function, and in the context of section 12(3) that is as to the placement of a child who has been necessarily assessed as being in need of care, that the exercise of application of that priority or hierarchy of placement must be carried out in every case.

That is why it is not expressed as being subject to or consistent with section 10, the best interests of the child principle.  It is something which is mandated to occur on every occasion, and that has not happened in this case.  The reason that that has not happened is because of a foundational error by her Honour in the Local Court as to the content and application of that principle, which has not been corrected at any of the appellate levels.  So to that extent, your Honours, we would say that that constitutes a vitiating error.

BELL J:   If it were corrected, it would be to what end?  Mr Wyvill, as I understood it, accepted that here we have an issue between the placement of the child within the child’s family with his Caucasian aunt and uncle, or the placement of the child, subject to a protection order until the child is 18, with the foster carers.

MR McCONNEL:   Yes.

BELL J: In terms of the outcome, Mr McConnel, what bearing would closer attention to section 12, in the way for which you contend, produce ‑ ‑ ‑

MR McCONNEL:   A very real possibility of two potentially different outcomes, your Honour.  Firstly, the placement of the child with the paternal aunt and uncle was a very real possibility because the exercise involved recognition and balancing of two acknowledged risks inconsistent with each other, the first risk being the risk as a result of disruption from the placement with the foster carers; the second risk being the risk of harm caused by removal from the family in a long‑term sense and the boy spending the entirety of his childhood removed from family as the order eventually made by her Honour provided.  That is the first real possibility.

The second real possibility is the outcome which was contended for by the CEO on the amended application which was, effectively, a short‑term placement for a period of two years that would involve assessment and, if deemed suitable, transition to the long‑term care with the paternal aunt and uncle.  That was a very real possible outcome which was ultimately simply not recognised in her Honour’s final disposition when what her Honour undertook, in my submission, was essentially a balancing of two only alternatives – that being placement with the foster carers in the long‑term or placement with the paternal aunt and uncle in the long‑term with immediate effect.

BELL J:   Yes, thank you.

MR McCONNEL:   Your Honours, I wanted to address three points, if I may, in relation to the public importance of this question.  The first is that

the application of the Aboriginal Child Placement Principle and the concepts underlying it, is a matter of national importance.  It is a policy which is found in the National Framework for Protecting Australian Children which is a document produced by the Coalition of Australian Governments. 

So it has, at its foundation a national policy response and, specifically, a policy response that recognises historical experiences that Aboriginal families have had with child protection agencies and a recognition of a problem of non‑compliance with the Aboriginal Child Placement Principle as a means of ensuring that Aboriginal children receive culturally appropriate protection services and care. 

So this case, your Honours, is a manifestation, we would submit, of a problem of non‑compliance with that principle which has been recognised at the national level.  I would observe, your Honours, that the text of the Aboriginal Child Placement Principle in our legislation is materially identical to that in the Tasmanian legislation. 

Finally, your Honours, the principles and their continued application in the Northern Territory, notwithstanding the amendments brought about in 2019, reflect considerations by the royal commission that my learned friend, Mr Wyvill, referred to, being a royal commission of national significance, a joint commission of the Commonwealth and the Northern Territory examining these very provisions.  If the Court pleases, your Honour. 

BELL J:   Yes, thank you, Mr McConnel.  We do not need to hear from you, Mr Boe.

The application is not a suitable vehicle for consideration of the Aboriginal Child Placement Principle reflected in section 12 of the Care and Protection of Children Act 2007 (NT). In our opinion, there are insufficient prospects that an appeal would succeed to warrant the grant of special leave.

Mr Wyvill, you sought a special order in relation costs in the event your application was not successful.  Is there anything you want to put in support of that? 

MR WYVILL:   Yes, your Honour.  We have covered that in our submissions, in both the application, which is at page 276, and our response at – if your Honour just bears with me for one moment.

BELL J:   At 276 you contend that in light of the nature of these proceedings the Court apply a principle of what order – what costs order in all the circumstances seems proper, by contrast with an order that costs follow the event in the usual course.  Applying your test, Mr Wyvill, why would it not be proper to make the usual costs order in circumstances in which you have – the matter has been contested on behalf of the aunt and uncle to the Court of Appeal unsuccessfully you bring an action – you bring an application from that determination.  Why would it not be proper that the Court make the usual order?

MR WYVILL:   For these reasons, your Honour.  First, there is ‑ and I do not think it is disputed, my learned friend, Mr Boe, I think accepts as much in his submissions ‑ there is inconsistency between different decisions of the Northern Territory judges in this matter, particularly in relation to REF, and his Honour, one of the members of the Court of Appeal said that that decision implicitly was wrong.

Secondly this is a matter ‑ the underlying principles, your Honour, particularly in relation to the issues that arise from the royal commission are clearly matters of public interest, it is important for the proper development of the law in the Northern Territory that these matters, these developments, be undertaken on a clear understanding of the law.  Your Honours are against us in terms of that, but it was a legitimate position for us to take in terms of pressing these matters at this level.

And finally, your Honour, and probably most critically, my clients do not bring this application for any other reason than out of a concern of the impact that it will have on this boy to grow up outside his family.  Now, yes, everybody has incurred costs as a result of that, but we would submit it would not be appropriate given the rules in relation to costs, which are not disputed by my learned friend, for there to be a further order against them in that respect.  For those reasons, your Honour, and for the reasons set out in the application in our response, we would say that there should be no order as to costs.

BELL J:   Yes, thank you.

The application is dismissed.  The applicants are to pay the costs of the third and fourth respondents.

Adjourn the Court to 12:30 pm. 

AT 12.19 PM THE MATTER WAS CONCLUDED