Secretary, Department of Communities and Justice v JK

The appeal before the court involved the parents of a child, JK, against the Secretary of the Department of Communities and Justice. The parents were appealing against the costs orders made by the Children’s Court of New South Wales, which had determined that the child was in need of care and protection. The parents sought to overturn these orders on the basis that they were not in the best interests of the child and that the court had erred in its assessment of the risk to the child's biological younger brother. The case was heard in the District Court of New South Wales.

The court was required to determine whether the Children’s Court had erred in its decision to order the parents to pay costs. This involved assessing the criteria for determining "exceptional circumstances" under which costs might be awarded. The court also needed to consider the relevance of the allegations of sexual interference with the step-daughter to the risk posed to the biological younger son. The parents argued that the findings regarding the step-daughter were irrelevant to the risk assessment concerning their biological son, and that the court should not have based its decision on these findings.

In allowing the appeal, the court held that the Children’s Court had indeed erred in its assessment of the risk to the biological younger son, as it had improperly relied on the allegations concerning the step-daughter. The court concluded that there were no exceptional circumstances to justify the costs orders. The appeal was thus allowed, and the costs orders made by the Children’s Court were set aside. The court dismissed the parents' application for costs orders, and no order was made as to the costs of the appeal or the notice of motion.

The court's final orders were that the appeal was allowed, the costs orders made by the Children’s Court were set aside, there would be no order as to the costs of the proceedings before the Children’s Court, there would be no order as to the costs of the appeal, the notice of motion filed on 1 June 2023 was dismissed, and there would be no order as to the costs of the notice of motion.