Re. a Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice

[2021] NSWDC 197

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re. A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197

Hearing dates:

26 February 2021

Date of orders:

26 February 2021

Decision date:

26 May 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [123] for orders.

Catchwords:

CHILD CARE APPEAL ON COSTS – appeal from decision of Children’s Court refusing appellant’s application for costs where the Secretary, Department of Communities and Justice failed to meet the establishment criteria in proceedings in the Children’s Court – whether exceptional circumstances have been shown by the costs appellant: s 88 of the Children and Young Persons (Care and Protection) Act 1998

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, s 9(1), s 44, s 72(2), s 88, s 91, s 98, s 105

Civil Procedure Act 2005 (NSW), s 98

Health Insurance Act 1973 (Cwth)

Cases Cited:

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665

Department of Family and Community Services v SM and MN [2008] NSWDC 68

Gray v Richards (No 2) [2014] HCA 47

Ho v Professional Services Review Committee No 295 [2007] FCA 288

House v The King (1936) 55 CLR 499; [1936] HCA 40

Keen v Telstra Corporation (No 2) [2006] FAC 930

Northern Territory v Sangare [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Re: A Foster Carer v Department of Family and Community Services [No 2] [2018] NSWDC 71

Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) NSWChC 2

Sheborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Category:

Costs

Parties:

A Costs Appellant Carer (Appellant)
The Secretary, Department of Communities & Justice (Respondent)

Representation:

Counsel:
Ms C Smith (Appellant)
Ms B Dean (Respondent, The Secretary)

Solicitors:
Amanda Fawaz (Appellant)
Crown Solicitor (Respondent)

File Number(s):

2021/11650

Publication restriction:

A non-publication order has been made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) imposing restrictions on publication of names and identifying details

Judgment

Table of Contents

Introduction	[1] – [5]
Non-publication order and litigation pseudonyms	[6]
Dramatis personae	[7]
Evidence	[8] – [10]
Factual Background	[11] – [54]
Events leading to the assumption of the child into care	[12] – [46]
Events between assumption and dismissal of proceedings	[47] – [54]
Reasons for dismissal of the Children’s Court proceedings	[55] – [59]
Legislation	[60] – [64]
Submissions of the parties	[65] – [81]
Costs appellant’s submissions	[69] – [73]
The Secretary’s submissions	[74] – [81]
Applicable legal principles concerning costs	[82] – [87]
Consideration and determination	[88] – [117]
Quantum	[118] – [121]
Costs of the appeal	[122]
Orders	[123]

Introduction

1. These reasons concern a carer’s appeal from a costs decision of the Children’s Court. The costs appellant is dissatisfied with that decision. Her appeal is brought as of right pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”). On 9 April 2020, the Children’s Court Magistrate justifiably described the family circumstances as unique when dismissing child care and protection proceedings brought by the Secretary, Department of Communities and Justice (“DoCJ”).

2. The dismissal of the underlying proceedings occurred because the evidence DoCJ placed before the Children’s Court failed to satisfy the evidentiary requirements of merit for the establishment test. The Children’s Court found no justification had been shown for the removal of a newborn child from the care of her teenage mother on the second day of life.

3. On 9 December 2020, the Children’s Court rejected and dismissed a consequential application by the costs appellant carer for a costs order against the Secretary. She brought that application because she had incurred substantial legal costs in successfully intervening in the underlying dismissed child care proceedings brought by DoCJ.

4. The costs appellant had a relevant interest in those proceedings. As a family, she and her husband were the teenage mother’s long term carers. She felt compelled by events to apply to be joined to the proceedings. Subsequent to that joinder, her intervention was vindicated when the proceedings brought by the Secretary were dismissed. In those events she incurred legal costs in the sum of $42,924.20 including GST. She now claims a compensatory costs order from the Secretary.

5. The Children’s Court is empowered to award costs in care proceedings but only in exceptional circumstances: s 88 of the Care Act. In the Children’s Court, the Secretary had successfully opposed the carer’s claim for costs. This appeal involves a re-consideration of the merit of that claim for costs.

Non-publication order and litigation pseudonyms

6. Previous non-publication orders made in the Children’s Court continue to apply to these proceedings.

Dramatis personae

7. In order to understand the factual basis of the claim for costs, it is convenient to first identify the dramatis personae before proceeding to identify some relevant matters within the factual background. In these reasons, the following litigation pseudonyms have been assigned:

1. The child who was the subject of the dismissed proceedings will be referred to as the child;

2. The mother of the child will be referred to as the mother. She has a mild to moderate intellectual disability;

3. The costs appellant, who had parental responsibility for the mother at the time of the removal of the child, and who now has parental responsibility for both the child and her mother, will be referred to as the carer.

Evidence

8. Both the costs appellant carer and the Secretary produced separate tender bundles to support their respective positions in this costs appeal.

9. The cost appellant’s tender bundle comprised a volume of 157 pages divided into 19 Tabs which contained relevant documents extracted from the Children’s Court proceedings.

10. The Secretary’s tender bundle comprised a volume of 280 pages of material divided into 4 tabs which contained the chronology of events, extracts of departmental records between 1 August 2019 and 13 January 2020, and two affidavits from a departmental caseworker, with exhibited documents annexed. Those affidavits, which were prepared for the Children’s Court proceedings, were affirmed by the caseworker on 8 May 2020 and 20 July 2020 respectively. The summary which now follows draws upon that evidence.

Factual background

11. The factual background may be conveniently analysed in two parts, the first part concerning relevant events occurring prior to the child being assumed into the care of the Minister, and the second part concerning relevant events occurring thereafter to the point of dismissal of the underlying care proceedings.

Events leading to the assumption of the child into care

12. On 20 August 2020, the underlying care proceedings failed at the establishment stage. At that time the Children’s Court found that the child, who had been removed from the maternal care of the mother whilst still in hospital on the day after he was born, was not relevantly in need of care and protection at the time of such removal: s 72(2) of the Care Act.

13. The background circumstances were that prior to the dismissal of the underlying proceedings in the Children’s Court, on 9 April 2020, when the child was 4 days old, as the carer of the child’s mother, she found herself in a situation in which she felt compelled to make an urgent application for intervention in the Children’s Court proceedings.

14. This was because of what she considered to have been the precipitously untoward and unnecessary action taken by DoCJ in assuming the child into the care of the Minister. At the time, the carer’s intervention was undertaken without regard to the cost she would incur following that intervention.

15. In order to understand why the carer felt compelled to intervene in the Children’s Court proceedings, it is necessary to set out some further background events which provide the context. This includes the circumstances of the child’s mother, and her legal status, being a teenager with a mild intellectual impairment, who, as a child, had herself been removed from parental care in 2004. Thereafter, since 2005, the carer had care for the mother from the age of about one year old. The costs appellant carer considered the mother-to-be her daughter.

16. Since the conclusion of the Children’s Court proceedings, both the mother and her child have remained in that care as a family.

17. When the teenage mother was aged 15 years, she became pregnant with the child. This followed a sexual relationship the mother had formed with a youth of the Bundjalung people. The child is therefore also an Aboriginal child of the Bundjalung people. At the time of the child’s conception both parents were under the age of legal consent. The father also had an intellectual impairment.

18. The fact of the mother’s pregnancy became known to DoCJ at an early stage of that pregnancy. No criticism has been made to suggest a lapse of due care or supervision of the mother by the carer in the circumstances which led to the pregnancy. In these reasons it is not necessary to further identify those circumstances.

19. Over the course of the mother’s pregnancy, DoCJ staff necessarily and understandably maintained an appropriate supervisory oversight concerning the welfare and wellbeing of the mother and the unborn child with full knowledge of the due date for delivery.

20. However, and unbeknown to the carer, during the pregnancy, in October 2019, some 6 months before the birth of the child, DoCJ had made a decision to remove the child from the maternal care of the mother. The plan was to remove the child shortly after birth. The costs appellant’s tender bundle (p 20) shows that decision must have been made before prior alternative action was considered, and where a safety assessment in relation to the unborn child was yet to be completed.

21. In the lead-up to that decision by DoCJ, no antecedent discussions had taken place between DoCJ staff and the carer to raise any concerns over the existence or otherwise of a potential for risk of harm to either the mother, or to her unborn child.

22. Such discussions ought to have formed an integral part of any prudent investigation of whether the child, when born, was likely to be at a significant risk of harm if in the care of the mother.

23. In the lead-up to the Children’s Court proceedings, it became evident to the carer that the decision by DoCJ to remove the child at or shortly after birth was made without having undertaken a full and proper assessment. The decision was also made without an assessment of the mother’s parenting capacity. Therefore, at the time of the child’s removal, whatever assessments had been made, they were incomplete.

24. In the circumstances of that incomplete consideration, the carer felt compelled to, and was found by the Children’s Court, to have been justified in making, an urgent application to be joined to the proceedings initiated by the Secretary. The application for joinder was not opposed by the Secretary.

25. It is only in the context of the costs application under present appeal that the Secretary has asserted that such joinder was not necessary.

26. The carer’s intervention was not a surprising development as she was in the unique position of having the practical day-to-day responsibility for the mother’s care, welfare and wellbeing. It was in that capacity that she recognised any action by DoCJ that had the effect of separating the mother from her child was against the natural order of events, absent evidence of a significant risk of harm to the child. In those circumstances, with legal assistance, the carer acted quickly and properly with the aim of keeping the family together.

27. On reviewing every stage of the course and content of the preparation for the Children’s Court proceedings as described in the evidence, it is clear that the carer’s intervention was necessary having regard to the paramount best interests of the child: s 9(1) of the Care Act.

28. As the assigned carer for the mother, the carer was without doubt in a sound position to advocate for an outcome that considered and appropriately took into account the paramount principle as it applied to both the newborn child as well as to the mother.

29. A review of the documentation relied upon by the Secretary in the dismissed Children’s Court proceedings reveals the following relevant facts, which are cross-referenced to the Secretary’s tender bundle:

1. After DoCJ had ascertained the mother was pregnant, the summary of her child protection history as prepared by DoCJ, recorded that no active alerts were in the system relating to the mother (p 20);

2. It appears the DoCJ file which led to the commencement of the dismissed Children’s Court proceedings was opened because of the mother’s pregnancy (p 25);

3. Investigations by DoCJ caseworkers concluded with the assessment that the pregnancy arose from “peer consensual sex” and not sexual assault (p 43);

4. It is recorded that a mandatory reporter advised DoCJ that the mother was attending all necessary antenatal appointments throughout the pregnancy (p 27);

5. The focus of oversight by DoCJ was a mandatory reporter’s view that there was a concern that the mother might not be able to care for herself and the unborn child during the pregnancy (p 28);

6. In light of those events, a caseworker went on to express a speculative concern that the mother might not be able to process information as to her need for antenatal care on account of her mild intellectual disability (pp 29 – 31);

7. In light of the above events, and in view of a recorded historical episode where the mother had for a 3 month period absconded from the carer’s home to be with her natural father, it appears she became pregnant in that time. DoCJ continued to maintain active monitoring of the mother’s pregnancy and care (pp 52 – 58).

30. As events transpired, any untoward concerns held by DoCJ over the mother’s care or the wellbeing of the unborn child, in the course of her pregnancy, did not eventuate.

31. Nevertheless, and properly so, DoCJ caseworkers maintained an intermittent background surveillance of the mother’s pregnancy through a series of home visits and assessments. In that regard, as explained in an affidavit sworn by the DoCJ caseworker on 8 May 2020 in the Children’s Court proceedings, the following events occurred as recorded below:

1. On 6 February 2020, two months before the child was born, at a family conference meeting with DoCJ, the mother and carer were informed that it was likely the child would be assumed into the care of the Minister at birth. That indicative view, as communicated obviously caused consternation in the carer and in the mother. A plan was made for a subsequent assessment to be undertaken of the mother’s ability to care for the child (p 64);

2. On 28 February 2020, DoCJ investigations revealed that the mother had attended four sessions of a required parenting programme, she had contributed well to discussions in that programme, appeared to have insight, asked appropriate questions relating to the birth, breastfeeding, and spoke positively of preparing for the child (p 64);

3. On 11 March 2020, in a final risk assessment for the child, if remaining in the care of the mother and her carer, DoCJ assessed the risk involved as being “high” (pp 65, 113 – 118). To say the least, the evidence for that assessment was slight and unpersuasive;

4. On 12 March 2020, in the context of the pre-determined plan to remove the child from the mother after birth, a DoCJ caseworker sought approval for a plan to provide support to the mother to spend time with the child whilst they remained in hospital. On the same day, that plan was considered in the DoCJ decision-making hierarchy. In that consideration, DoCJ determined that any plan for the child’s placement with the mother’s carer would not be supported (p 65) and it was decided that the child would not be going home with his mother (p 102);

5. At a point just 18 days before the expected date of birth of the child, DoCJ identified some relevant questions for consideration to be as follows:

1. How will DoCJ know the baby is growing well and is healthy? In that regard, in the recorded analysis, there were no concerns identified;

2. How would the mother communicate about and manage the pain of labour? The question was adequately addressed but ultimately it proved otiose given that the delivery was by emergency caesarean section after a long labour when the delivery was overdue by 5 days;

3. How would the mother’s parenting capacity and her ability to care for the baby be assessed? The time frame for that assessment was unrealistically confined to the remarkably short period between birth and discharge from hospital. Somewhat insensitively, and lacking in insight, a plan was envisaged whereby breast milk would be provided to the newborn child through bottle feeding, absent the mother;

4. How would the mother remain engaged with her schooling before and after the baby was born? That question was satisfactorily addressed without any concerns being identified;

5. Would the mother be emotionally supported in her new role as a new mother? The question seemed artificial and superfluous, especially given that the plan was to remove the child from maternal care in any event, which would have disrupted the mutuality of attachment between the mother and her child;

6. The last of those questions, raised an inconsistent tension with the stated plan to remove the child from maternal care at birth (pp 106 – 111);

7. The evidence clearly shows that DoCJ was contemplating placing the child with another carer.

32. On 6 April 2020, a DoCJ Safety Assessment Decision Report concluded that protection was required for the child (answer to Q1, even though the answers to Q2 – Q14 were expressed in the negative in terms of risk factors). That decision was made by DoCJ despite the fact that the existing carer and the mother were willing and committed to engaging with relevant services.

33. The mother’s moderate degree of intellectual disability seemed to be the determining factor in that consideration by DoCJ, and the assessment in question did not seem to adequately reflect the role of the costs appellant carer in the mix (pp 121 – 128).

34. Ultimately, for sound reasons, the Children’s Court did not accept the aptness of DoCJ’s risk assessment. The DoCJ assessment was nebulous, and the DoCJ documentation which recorded that assessment amply supported the contrary view which was taken by the Children’s Court Magistrate.

35. Since the pregnancy became known, the mother had been maintaining a healthy diet for herself and the baby, she had attended all the required antenatal appointments, she had volunteered to participate in pregnancy conferencing, and she was obtaining professional support in relation to the child, including a “baby care program” (p 114).

36. The DoCJ risk assessment documentation referred to the assessments that had been made by healthcare professionals where it was stated that antenatally, the child was developing well and there were no current concerns in relation to the child’s development, there was no evidence of abuse, and it was noted that there was no evidence of neglect of the unborn child. Significantly, the DoCJ assessment report noted that the mother “speaks positively of the baby and has named him [redacted]. It is unknown at this time as to how [the mother] will respond to the baby. [The mother] will be monitored whilst in hospital and following this.” (pp 115 – 116).

32. Significantly, the risk assessment made by DoCJ on 11 March 2020 went on to conclude that at that time, the mother’s carer has not been assessed as a secondary carer. It is abundantly clear from those circumstances that a different placement for the child was intended by DoCJ. It was also noted that upon the birth of the baby, the costs appellant carer would be a significant support for the mother (p 117).

33. On 12 March 2020, DoCJ caseworkers held a meeting at which it was recorded that a search was underway for a suitable carer for the child in an environment where the mother and the child could also develop a relationship (p 66).

34. On 5 April 2020, the child was born. DoCJ were promptly notified of that fact. The following events were then recorded. First, the child was initially required to remain in hospital to monitor his glucose levels. Secondly, a social admission of four days then followed (p 66).

35. On 6 April 2020, pursuant to s 44 of the Care Act, the newborn child was assumed into the care of the Minister pending an application to the Children’s Court. Paragraph 48 of the caseworker’s affidavit stated:

“The Notice of assumption cited concerns in relation to [the child]’s basic physical, psychological and educational needs being met, and that he is likely to suffer serious developmental impairment or serious psychological harm. A Safety Assessment Decision Report was prepared in relation to the decision for [redacted]’s assumption and is at pages 51 to 58 of Exhibit JB-1.”

[Secretary’s Tender Bundle, pp 121 – 128]

41. It is plain that the notice cited in the preceding paragraph was based on unsupported speculative considerations which obviously influenced the plan by DoCJ to place the child into foster care on discharge from hospital (p 66).

42. The notice of assumption was based on the unsupported assertion that “Information held by DoCJ indicates that neither parent is likely to have the capacity to care for the baby”. That assertion was based on an incomplete and inadequate investigation and assessment.

43. Those events prompted the costs appellant carer to spring into action and consult a lawyer. Her solicitor’s resultant tax invoice records the detail of the significant legal work which then ensued, culminating in the dismissal of the Secretary’s application to the Children’s Court.

44. In those events, and with knowledge by DoCJ of the carer’s application to intervene in the Children’s Court proceedings, DoCJ staff met with the costs appellant carer, and with the mother, in hospital. At that time undertakings by the carer were discussed, aimed at the mother and child being discharged to the costs appellant carer’s home pending further assessments being undertaken (pp 66 – 67).

45. The effect of the further assessments undertaken by DoCJ after the birth of the child were set out in the caseworker’s affidavit which was read in the dismissed Children’s Court proceedings (pp 67 – 69).

46. In short, the result of those assessments seemed surprising to DoCJ. The mother was noted to have demonstrated above expectation awareness of the child’s needs and care. A functional assessment at the child’s age at 6 weeks was arranged. In the ensuing visits, caseworkers did not raise any concerns. The child appeared well and healthy, progress was being monitored, and the mother was appropriately attending to tasks, including breastfeeding.

Events between assumption and dismissal of proceedings

47. The Secretary’s evidence bundle contains voluminous material that post-dates the costs appellant’s intervention in the Children’s Court proceedings (pp 129 – 280). That material is in the form of annexures to affidavits, and includes various DoCJ assessments that were the subject of consideration by the Children’s Court prior to the proceedings being dismissed.

48. As the correctness of the order for dismissal of the Children’s Court proceedings is not challenged, it is not necessary to undertake a detailed analysis of that material at this point, because it is no longer relevant to a prospective review of the events that occurred between, when DoCJ became aware of the pregnancy, and the time of the removal of the child from maternal care on 6 April 2020.

49. The newborn care assessments undertaken by DoCJ in hospital only spoke positively of the mother’s interactions and bonding with the infant, and in relation to her caring skills, as supported by the costs appellant carer. The assessors took a series of photographs as evidence of that view (pp 135 – 137, 142, 241). Subsequent successive reviews and assessments did not derogate from that positive view. The child was assessed to be doing well and was thriving. The mother was also noted to be doing well.

50. The Children’s Court was apprised of those assessments before dismissing the underlying proceedings.

51. In respect of the post-assumption period, in addition to the outcome of the assessment carried out whilst the mother and the child were still in hospital, and subsequently, it is sufficient to here record that nothing in the material serves as a reasonable basis to contra-indicate or disentitle the costs order sought by the costs appellant in this appeal.

52. It is plain that the intervention by the costs appellant carer was materially instrumental in bringing important and relevant facts and issues to light regarding the care, wellbeing, health, and welfare of the child. This resulted in the Children’s Court unhesitatingly dismissing the Secretary’s application, characterising the antecedent actions by DoCJ as unjustified because it was found that the child was not relevantly in need of care and protection.

53. The evidence before the Children’s Court overwhelmingly suggests that, but for the intervention in those proceedings by the costs appellant carer, DoCJ would not have faced a contradictor who was in a position to argue for the family to be kept together. Absent the carer’s presence in the Children’s Court proceedings as a contradictor, a different outcome might possibly have been more cogently arguable by the Secretary.

54. However, on the entirety of the evidence that was ultimately presented to the Children’s Court for consideration, the Children’s Court Magistrate reached the obvious and compellingly correct conclusion that the proceedings brought by the Secretary should be dismissed for want of merit.

Reasons for dismissal of the Children’s Court proceedings

55. The relevant portion of the considered reasons of the Children’s Court Magistrate for dismissal of the Secretary’s application on 9 April 2020 identified a relevant failure on the part of departmental officers to make an assessment of the real situation of the newborn child at the time of birth. In that regard, the concluding remarks of the Children’s Court Magistrate are reproduced below, with emphasis added:

“Conclusion

The secretary asserts that at the time of birth or following the birth, but for the actions of the secretary in assuming care of [the child], he was a child in need of care because his basic psychological, physical, psychological or educational needs were not being met or not likely to be met by his primary caregivers, or that he was suffering or likely to suffer serious development impairment or serious psychological harm as a consequence of the domestic environment in which he was living. The evidence shows that although [the mother] suffers from an intellectual disability, that of itself does not mean that she is unable to provide for [the child] care and protection. Indeed, there is strong evidence to support the conclusion that she is more than able to do so and has done so from [the child] birth.

It is hard not to reach the conclusion that because of [the mother] period of emotional instability between January and September of 2019, in conjunction with her intellectual disability, a decision was made to remove [the child] at birth without waiting to assess the real situation about his care following birth. The fact that the Tweed Heads Community Health was told in October of 2019 that [the child] would be removed supports the conclusion that the decision was made then and that the actions of the departmental officers following that time were focused on preparing for that to occur rather than assessing the real situation at the time of his birth.

In the circumstances of the evidence available, and given the level of engagement of [the mother] in her antenatal preparation, the parenting skills she has displayed whilst an inpatient at Tweed Heads Hospital, the support she has received and continues to receive from [the costs appellant], and the plan that they jointly made for [the child] care. I do not think that at the time of his assumption he was a child in need of care in accordance with the legislation. I am not satisfied that the actions of the secretary in obtaining undertakings from [the costs appellant] before [the child] was released into her care made any real difference to the situation.

In many respects this is a situation faced by many parents, where a young girl member of the family unexpectedly finds herself pregnant and her family then rally around her to provide care and support to her and the child. Such a situation does not ordinarily justify the intervention of the State in the lives of such families; and notwithstanding the unique nature of this family, it does not, in my mind, justify the State to intervene in the lives of this family.”

[Tab 13, pp 92-93]

[The names of the identified persons have been replaced with the assigned litigation pseudonyms]

[Emphasis added]

56. Consequent upon the dispositive findings of the Children’s Court, as identified in the preceding paragraph, the costs appellant carer claimed that exceptional circumstances existed within the meaning of s 88 of the Care Act. She consequently claimed the circumstances justified an order that the Secretary should be required to pay the substantial legal costs she incurred in the lead-up to and in the course of her participation in the dismissed Children’s Court proceedings.

57. On 9 December 2020, six months after dismissing the proceedings brought by the Secretary, the Children’s Court Magistrate dismissed the carer’s application for costs. At that time, the Children’s Court Magistrate made the following additional remarks on the question of whether the dismissed proceedings initiated by the Secretary lacked merit:

“I do not agree that the Secretary’s application lacked merit to the extent that it should never have been commenced. The fact that when it was assessed on the basis of the available evidence it was found to be wanting and therefore dismissed does not mean that it lacked merit to the extent that it was inappropriate for it to have been commenced in the first place.”

58. Consequent upon those remarks, in this appeal, a question arises as to whether the remarks cited in the preceding paragraph were consistent with the earlier cited dispositive reasons for dismissing the Secretary’s application, as appears in the emphasised portions of the reasons of the Children’s Court Magistrate cited at paragraph [55] above.

59. In that regard, when the Children’s Court Magistrate concluded that the proceedings were not so lacking in merit that it was inappropriate that they were commenced, he did not then proceed to consider the alternative and consequential question raised by the costs appellant, namely, whether the proceedings once commenced, ought to have been discontinued. That question remains examinable in this costs appeal.

Legislation

60. Relevant to the present appeal, the administration of the Care Act requires that in any action or decision concerning a particular child, the safety, welfare and wellbeing of that child are to be considered as the paramount principle: s 9(1) of the Care Act.

61. In the dismissed proceedings, the paramount principle had to be considered for its application to the child and to the mother, as is evident from the reasons given by the Children’s Court Magistrate.

62. In identifying the paramount principle, it is noteworthy to observe that the Care Act does not prescriptively limit which party may make submissions that advocate for a particular application of that principle.

63. Section 88 of the Care Act relevantly provides for a costs jurisdiction in Care proceedings as follows:

88 Costs

The Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so.

64. That provision, which identifies a statutory limitation on making an order for costs, has been considered in a number of decided cases which were referred to in the submissions of the parties.

Submissions of the parties

65. The present appeal was added to the end of a busy circuit hearing list in Lismore on the understanding of the parties that, on account of other list priorities and arrangements, after taking evidence and hearing argument in the appeal, reasons for judgment would be delivered in Sydney at a later date.

66. In anticipation of the hearing, counsel for the respective parties had each helpfully prepared detailed written submissions which made reference to previously decided cases. Counsel supplemented their written submissions with oral argument. Counsel for the Secretary appeared by means of an AVL connection.

67. Essentially, whilst the decided cases to which I have been referred provide some helpful guidance to the consideration of the costs question, necessarily, they are not prescriptive. Instead, the costs outcomes in those cases very much depend upon the respective intrinsic factual circumstances which gave rise to those particular decisions.

68. Accordingly, in these reasons, where a costs discretion arises for consideration, it is not necessary to analyse the individual examples that emerge from those decided cases, save that the principles which were applied in those cases must be applied to the present case.

Costs appellant’s submissions

69. In essence, the submissions made on behalf of the costs appellant were to the effect that the care proceedings initiated by the Secretary simply lacked merit.

70. The costs appellant primarily argued that the child should never have been assumed into care, and the proceedings should not have been commenced. It was argued that in the circumstances, the costs appellant had no choice but to seek to be joined to the proceedings.

71. Alternatively, the costs appellant submitted that once the Secretary’s proceedings had been commenced, the flawed basis of the proceedings should have been recognised and they should have been discontinued. Absent such discontinuance, the costs appellant argued that she had no choice but to seek to be joined to the proceedings.

72. The costs appellant submitted that the circumstances were exceptional within the meaning of s 88 of the Care Act.

73. Consequently, the costs appellant submitted that the costs order sought by her was justified, and that any such order should be the subject of a specific gross sum order because such a course would avoid prolongation of the dispute, and would enable the costs appellant carer to continue to focus on the task of caring for the mother and the child without the interim distractions of a delayed assessment of costs.

The Secretary’s submissions

74. In essence, the submissions on behalf of the Secretary were to the effect that the Children’s Court Magistrate was correct in refusing the costs application sought by the costs appellant. The Secretary consequently submitted that decision should be confirmed pursuant to s 91(5) of the Care Act. Those submissions drew upon the argued application of a number of decided cases dealing with s 88 of the Care Act.

75. The Secretary disputed the proposition that the initiating application lacked merit such that the proceedings should not have been commenced in the Children’s Court. The Secretary therefore submitted that the decision of the Children’s Court which refused the costs order sought by the costs appellant should not be substituted with a different conclusion as there was nothing exceptional in the circumstances which would justify the costs order sought.

76. In making that submission, the Secretary placed significant reliance upon the additional remarks made by the Children’s Court Magistrate on the question of whether the Secretary’s application lacked merit, as cited at paragraph [57] above.

77. The Secretary also argued that the costs appellant carer need not have sought to be joined to the proceedings. In my view, that particular submission is conveniently considered and can be rejected at this point. I consider it to have been made with the convenience of hindsight. In my view, the submission is not reasonably supportable on a prospective view of the factual circumstances as presented to the Children’s Court and as summarised in these reasons.

78. The Secretary’s submissions also relied upon policy consideration identified in the decision of the Children’s Court in the matter of the Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) NSWChC 2, where the following uncontroversial statement was made by his Honour Judge Johnstone, the President of the Children’s Court, at [24]:

“The policy basis behind the restriction on the power to award costs is self-evidently based in the notion that parties involved in care proceedings should have as full an opportunity to be heard as is reasonably possible, and should not be deterred from participating in such proceedings by adverse pecuniary consequences, the safety, welfare and well-being of the child being the paramount concern.”

79. That statement of principle as cited is indisputably correct. Nevertheless, the application of that principle must always remain subject to an assessment of whether exceptional circumstances have been shown to exist.

80. The Secretary’s submissions also relied upon, and cited my earlier decision in Re: A Foster Carer v Department of Family and Community Services [No 2] [2018] NSWDC 71, where, at [13] – [15], citing the decision in Knoll, it was stated:

1. A factual finding of the existence of exceptional circumstances must necessarily be case dependent. In Knoll, at [26], it was observed that the array of relevant factual situations that could comprise “exceptional circumstances” within the meaning of s 88 of the Act, were not exhaustively defined or limited.

2. 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.

3. 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].”

   81. I am unaware of any decided cases which require a different approach to that identified in Re: A Foster Carer v Department of Family and Community Services [No 2] [2018] NSWDC 71.

Applicable legal principles concerning costs

82. The legal principles cited in the two preceding paragraphs continue to apply, in conjunction with the Court’s discretionary costs jurisdiction as conferred by s 98 of the Civil Procedure Act 2005 (NSW).

83. As identified to the parties at the hearing of the appeal, the determination of costs questions involves the exercise of a discretion which must be based on reasons: House v The King (1936) 55 CLR 499; [1936] HCA 40; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

84. A costs determination is not intended to have a punitive element. Instead, the purpose of an order for costs is to provide an indemnity to operate against the expense of litigation that should not, in justice, have been visited on the applicant who seeks a costs order.

82. The question of determining competing costs positions in litigation involves a broad evaluative judgment of what the justice of the case requires, as explained in Gray v Richards (No 2) [2014] HCA 47, at [2].

83. The most recent authority which conveniently identifies the need to consider the latter point is the decision in Northern Territory v Sangare [2019] HCA 25, at [20]-[25] which also follows Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67].

84. The policy consideration that applies to the consideration of a specific gross sum costs order includes a recognition that there can be a real benefit in obviating delay and obviating the need for a costly and prolonged costs assessment: Sheborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003. To achieve that objective, it is recognised that a broad-brush discounted approach is to be taken to determining the costs payable when making a specific gross sum costs order: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665, at [122]; Keen v Telstra Corporation (No 2) [2006] FAC 930, at [5].

Consideration and determination

88. An analysis of the available evidence in the underlying factual circumstances is required to consider whether there was a reasonable basis upon which the Secretary could have formed an opinion during the child’s gestation, that the child would be in need of care and protection when ultimately born.

89. The starting point for the consideration is the undisputed and significant factual finding that DoCJ made a decision to remove the mother’s child at birth without waiting to assess the real situation about the care of the child after birth. The consequential finding of the absence of justification for intervention by the State is also undisputed.

90. The question of whether or not exceptional circumstances have been shown to exist within the meaning of s 88 of the Care Act must be seen as being case dependent in the context of the statutory scheme for child protection: Re: A Foster Carer v Department of Family and Community Services [No 2] [2018] NSWDC 71, at [13]-[15] citing the Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) NSWChC 2.

91. I agree with the conclusion of the Children’s Court Magistrate where he described the nature of the family in this case as unique. That characterisation must also have been apparent to DoCJ staff and this necessarily required DoCJ to undertake focussed consideration of the circumstances having regard to such uniqueness. That said, uniqueness does not necessarily equate to exceptional circumstances.

92. In general, in construing the statutory meaning of what constitutes exceptional circumstances, the phrase is not to be taken as a term of art. The circumstances do not need to be unique, unprecedented or very rare to be exceptional. Circumstances that arise regularly, routinely, or are not normally encountered, are not exceptional: R v Kelly [1999] 2 AER 13, at p 20.c-d; [2000] 1 QB, 198.

93. In my assessment, the Secretary’s submissions as to whether or not exceptional circumstances existed relied upon an unduly narrow and prescriptive construction of that expression. I consider that approach to be of little guidance in the present case because the statutory context of the Secretary’s argument involved a consideration of the Health Insurance Act 1973 (Cwth) which concerned the rendering of professional services requiring government payment: Ho v Professional Services Review Committee No 295 [2007] FCA 288. The case cited by the Secretary does not relevantly assist the analysis required in the present case.

94. It is an unexceptional proposition that the Secretary, by delegation, might determine that, in a particular case, it is necessary to remove a child from parental care on account of a serious risk of serious harm. In such circumstances, where such a risk was arguably likely, the child would then be assumed into the care of the Minister. It is equally unexceptional that in justified circumstances, the Secretary would then commence and continue with an application in the Children’s Court to seek consequential orders in respect of the care, protection and placement of the child.

95. However, in contrast to those statements of principle, in this case I find it was exceptional that such steps were taken by the Secretary to the extent of taking the Children’s Court proceedings to a hearing without beforehand taking appropriate measures to appropriately investigate and assess the factual circumstances to determine whether, in reality, the child was actually in need of care and protection.

96. A complete assessment was required. The removal of the child in question proceeded upon the basis of an incomplete assessment.

97. Appropriately complete investigatory measures included making a reliable assessment of the likely parenting capacity of the mother, recognising that she was herself in a supported situation of care. The assessment made by DoCJ was, inadequate, flawed, and unreliable.

98. If it needs to be stated, reliable and adequate assessments were fundamental, and were required before seeking a hearing in the Children’s Court because the removal of a child from parental care is a substantial and drastic intrusion that adversely impacts upon parental human rights as well as the human rights of the child.

99. In the present case, it is plain that in October 2019, DoCJ staff appropriately identified the question of whether an intervention should be considered, even though the child, as a foetus, was still en ventre sa mere.

100. In my opinion, a significant shortcoming arose in the course of the considerations and the actions taken by DoCJ staff. Whilst the mother’s pregnancy and welfare were being appropriately monitored, the end result was that the child’s welfare at birth and the child’s likely welfare thereafter had not been properly considered and assessed by DoCJ staff before the decision for removal was made.

101. On 6 April 2020, prior to the removal of the child from maternal care, the mother’s parenting capacity had not been properly assessed. In the circumstances that prevailed, it could not have been reasonably assessed a day after a long labour resulting in an emergency caesarean section, in which the mother required a reasonable time for recovery.

102. The circumstances of the assumption of the child were not just unusual, they were extraordinary, and outside the bounds of what would ordinarily be considered as being reasonable.

103. Any assessment on the day after birth in the described circumstances could only have been superficial and lacking in sufficient detail. It was necessarily incomplete, and therefore inadequate and unreliable. Those circumstances must be seen to be truly and glaringly exceptional.

104. Consequently, I find that the decision-making by the delegates of the Secretary which led to the child being assumed into care and made the subject of an application to the Children’s Court was flawed.

105. That conclusion is demonstrated by the pre-judgment made by DoCJ staff that the mother’s mild intellectual disability would impair her capacity to care for her child to the degree that required her child to be removed at birth. The decision taken was also flawed because it was taken at a time when no adequate parenting capacity assessment of the mother had been undertaken.

106. In taking and then maintaining that flawed position, DoCJ staff failed to reassess the pre-judgment that had been made in the lead-up to, and after, the birth of the child. Such a re-assessment, if undertaken, would have adequately demonstrated that the mother could appropriately care for the child despite her mild intellectual disability, including where she was in a supported situation in the care of the costs appellant carer and where she had been stable in her lifestyle and behaviours for a considerable period of time before the birth of the child.

107. Therefore, respectfully, for the reasons that now follow, I find myself in disagreement with the conclusion of the Children’s Court Magistrate cited at [57] above, where it was stated that the Secretary’s application did not lack merit to the extent that the proceedings should never have been commenced.

108. The objects of the Care Act include the notion that children and young persons receive such care and protection, as is necessary for their safety, welfare and wellbeing, having regard to the capacity of their parents or other persons responsible for them, and that appropriate assistance be tendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment: s 8(a) and s 8(c) of the Care Act.

109. In this case no proper parental capacity assessment had been undertaken by DoCJ to ascertain what might be necessary at the time the child was born: s 8(e) of the Care Act.

110. There was no assessment of what was considered to be appropriate assistance to the mother in caring for her child, including an assessment of whether the mother’s existing carer could provide appropriate assistance to the mother if this was necessary: s 8(c) of the Care Act.

111. I find that it was an exceptional circumstance that the application the Secretary brought before the Children’s Court was made without first having taken the fundamental step of making a sufficient assessment of the status of health and the needs of the newborn child, and also undertaking a fact-based assessment of the mother’s ability to care for the child, who was herself in an appropriate and supported care setting.

112. The Secretary’s proceedings lacked justificatory merit. The Children’s Court Magistrate confirmed and indicated that view.

113. In the described circumstances, having in mind the paramount principle in s 9(1) of the Care Act, the costs appellant carer had every right to resist the orders sought by the Secretary: Department of Family and Community Services v SM and MN [2008] NSWDC 68, at [9].

114. I find the Secretary’s pre-planned intervention and the proceedings that were brought, were precipitously premature and lacked the required factual consideration. The action taken by the Secretary was based on a necessarily incomplete assessment, and it was therefore unjustified in the circumstances. Those were exceptional circumstances within the meaning of s 88 of the Care Act.

115. I also find it to be an exceptional circumstance that the Secretary did not reassess and discontinue the proceedings after the costs appellant carer intervened in the Children’s Court proceedings.

116. I find that each of those circumstances were sufficiently exceptional that they engage the costs jurisdiction conferred by s 88 of the Care Act so as to entitle the costs appellant carer to the costs orders she seeks in this appeal.

117. I find that the costs appellant carer should be compensated for the legal costs she has incurred in her participation in the underlying proceedings.

Quantum

118. The tax invoice describing the work undertaken by the costs appellant’s solicitor shows that between 12 March 2020 and 6 October 2020, significant legal costs of $39,022 plus GST of $3,902.20 were incurred, totalling $42,924.20. The costs appellant’s tender bundle contains an affidavit from the solicitor sworn on 7 October 2020 which explains those costs (pp 122 – 134).

119. That legal work is sufficiently described in the solicitor’s tax invoice. Over the identified period, the work undertaken by the costs appellant’s solicitor variously comprised conferences, telephone calls, correspondence, reviewing DoCJ documents relating to the proposed assumption of the child into care, drafting and settling court documents prepared for the purpose of intervening in the proceedings, related conferences, including affidavits, undertaking travel for those purposes in a rural setting, preparation of draft submissions, a series of appearances in the Children’s Court proceedings, including the taking of judgment, and the preparation of the costs application and related costs submissions in the Children’s Court.

120. All of the particularised costs described in that tax invoice clearly and justifiably related to the costs appellant carer’s application to intervene in the underlying proceedings, including as to the need to argue the costs application in the Children’s Court. There appears to be minimal inclusion of costs that might concern purely administrative matters.

121. Recognising that the claimed gross lump sum assessment is to be arrived at by way of a discounted process, with less precision than would ordinarily be involved in a formal costs assessment, taking the required broad-brush approach in applying a discount, I consider a fair assessment on that basis is the rounded discounted sum of $38,000 inclusive of GST. I find that the costs appellant should have a compensatory costs order in that sum.

Costs of the appeal

122. As the costs appellant has succeeded in the appeal she should also have her costs of the appeal paid by the Secretary on the ordinary basis unless a party can show an entitlement to some other costs order. To allow for that possibility, there will be liberty to apply.

Orders

123. I make the following orders:

1. The costs appellant’s costs appeal is upheld;

2. The cost orders made in the Children’s Court on 9 December 2020 in proceedings before it numbered 2020/024 are set aside;

3. Pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and s 98(2) of the Civil Procedure Act 2005 (NSW), within 28 days, the respondent Secretary, Department of Communities and Justice is to pay the costs appellant’s costs incurred in the underlying Children’s Court proceedings in the discounted gross specified sum assessed at $38,000, including GST;

4. The respondent Secretary, Department of Communities and Justice is to pay the costs appellant’s costs of this appeal on the ordinary basis unless a party is able to demonstrate some other basis;

5. Liberty to apply for further or other orders if required.

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Amendments

26 May 2021 - Paragraph [40] - name redacted.

27 May 2021 - Paragraph [55] - pseudonyms amended.

27 May 2021 - Paragraphs [7] and [70] - pseudonyms amended.

Decision last updated: 27 May 2021