GFY v The Benevolent Society

Background

1. The children who are the subject of the removal orders in dispute were 12 and 10 years old at the time of the settlement. They are siblings, a boy and a girl, and they were removed from the care of their parents in 2015 after exposure to domestic violence, parental drug abuse and medical neglect. Both children have been in out of home care from this date.
2. In September 2019 the applicants were authorised by the first respondent as authorised carers after a positive carer assessment was undertaken by an independent assessor. The applicants have been in a relationship since 2009 and married in November 2022. One of the applicants, GFY, was a social worker with over 30 years' experience in child protection and the other, GFZ, has experience in operational management roles. GFY ceased paid work in June 2022 and has been the primary carer for the children since this time.
3. On 26 March 2020, the primary case responsibility for the children transferred from the second respondent to the first respondent. The children were placed in the care of the applicants in March 2020. Prior to this, the children were in a series of out of home placements with authorised carers. The most significant long-term placement was for three years from December 2015, where they were placed together. After December 2018, the children were placed in a several short-term placements, with no placement for more than a year. They were separated as a result of some of these placements. At the time of their placement with the applicants, it was reported that both children had significant and complex needs.
4. The youngest child has been diagnosed with complex, cumulative and enduring post-traumatic stress disorder, attention deficit hyperactivity disorder and mixed anxiety depressive disorder. The older child has also been diagnosed with the first two disorders and has been diagnosed with autism spectrum disorder, level 2, and generalised anxiety disorder. There is no dispute that the children have experienced serious trauma from an early age, which has resulted in behavioural issues, particularly over recent years.
5. When proceedings have settled, it is not desirable, nor is it necessary for the purpose of making a determination of whether costs should be ordered, to conduct a comprehensive review of the evidence to make findings of fact on the material matters in dispute at the time proceedings were commenced and then subsequently settled. I outline my reasons for this, and the approach I have taken in relation to contentious findings of fact, later in my reasons.
6. Despite this, it is useful to set out the background to the proceedings and the settlement, including key milestones and reports about the children. Much of this not contentious.
7. According to the evidence, and this is not in dispute, there have been regular carer review plans for the children since their placement with the applicants.
8. In the March 2021 plan, the placement with the applicants was identified as the children's permanent placement. It is recorded in this review plan that the applicants reported the older child's physical aggression had escalated and there were concerns about the younger child's mental health and long-term reliance on medication. The youngest child attended her first appointment with a psychiatrist in April 2021 and the oldest child's first behavioural support plan was developed by the first respondent in June 2021. The children were being treated by child and family practitioner, Stephanie Neal, who completed a carer review report in December 2020, noting that the children had ongoing health and behavioural needs. At this stage, both children had behaviour support plans and were getting medical assistance from a paediatrician and psychiatrist externally.
9. A carer review report was completed in December 2021 by Stephanie Neal, who noted that the children had ongoing health and behaviour needs and both children were exhibiting aggressive behaviour, including, in the case of the younger child, self-harming and sexualized behaviour.
10. A carer review report was completed in December 2022 by Stephanie Neal. It was noted that the applicants needed support from the first respondent in terms of behaviour support, after school arrangements and respite. It was also noted that the first respondent had applied for an additional care package and complex needs package which was approved for SAL Consulting to complete a Neurosequential Model of Therapeutics (NMT) assessment and behaviour support plan.
11. On 1 March 2023, an incident was self-reported to the new child and family practitioner, Natalie Powell, by the applicants. The incident arose out of an escalation of behaviour by the children with the younger child hitting GFZ with her school shoe and GFZ hitting her back on the left shoulder with an open fist. The child was not injured. This incident was reported to the Office of the Children's Guardian and no reportable conduct investigation was initiated.
12. The annual case plan reviews for both children were completed by the first respondent in March 2023. The review noted that both children were to be supported with the NMT assessment by SAL Consulting. Ignite Mentoring were engaged by the first respondent after the incident on 1 March 2023 with the aim of providing individual mentoring for the children. In September 2023, GFY's sister was authorised to provide respite care by the first respondent.
13. In September 2023 a Neurodevelopment, Attachment and Trauma Informed (NATI) behaviour assessment and positive behaviour support plan was prepared by Matthew Kelly in relation to the older child. A report was prepared for the younger child in November 2023.
14. On 11 September 2023 an incident was self-reported by the applicants to the first respondent. According to the report of the incident, it is apparent that the incident arose from the escalation in behaviour of the youngest child whereby GFZ placed her hands on the younger child's shoulders and neck forcefully to restrain her. This incident was assessed as a reportable allegation of ill treatment and an investigation was subsequently completed by an external investigator on 2 December 2023. The investigator was not satisfied that there was sufficient evidence to conclude that the conduct met the threshold for ill treatment and acknowledged that the applicants were struggling to manage the children's needs and behaviours. She made recommendations about follow up.
15. On 17 January 2024, a carer review report was completed by child and family practitioner, Cheyenne Brooks, who had been involved with the children since August 2023. The review included the following comments from the team leader: Despite the challenges, the children are settled in the care of [GFY and GFZ]. There is a significant number of professionals services involved with the children, which needs to be reviewed and determined if this is in their best interest. I am hopeful of an improved working relationship with the carers and TBS this year.
16. On 28 January 2024 there was a further instance involving the younger child and GFZ which was self-reported to the first respondent by telephone two days later. The children remained in the care of the applicants after this incident and on the following day, case plan meetings were held for each child.
17. The incident on 28 January 2024 was treated as a reportable conduct allegation of assault and on 1 February 2024, GFZ was notified in writing by the first respondent of an allegation of reportable conduct.
18. On 4 February 2024, Mr. Kelly of SAL Consulting sent an email to the applicants referring to discussions with Cheyenne Brooks and the team leader at the first respondent around clinical concerns he had that the younger child may have been sexually assaulted over the course of her development at some point considering her presenting behaviour. Mr. Kelly noted that he had very limited hours available at the time but he was hoping to organise meeting with them to "check in".
19. On 6 February 2024 there was a standard monthly home visit between Cheyenne Brooks and the team leader of the first respondent. Following this meeting, the Deputy Manager of the first respondent directed that a safety plan be completed with the applicants because of the current reportable conduct investigation. The applicants were emailed the safety plan for review on 7 February 2024. It is apparent from the email correspondence, that the applicants had concerns about the safety plan, and they asked if they could have a meeting with the first respondent.
20. On 12 February 2024 there was a complaints meeting held in relation to a formal complaint that the applicants had made against the first respondent. One of the complaints made by the applicants was the lack of supports provided to the placement.
21. On 13 February 2024, a 7-day notification was made to the Office of the Children's Guardian relation to the reportable conduct allegation against GFZ. On the same day, a pre-assessment consultation took place between the first and second respondents in preparation for the interviews that took place over the next two days.
22. On 14 February 2024, a caseworker from the second respondent was allocated to the children. Reportable conduct interviews were conducted by the first respondent with the children at their school on that day. A record of the interviews was not included in the s 58 documents filed by the first respondent and the applicants filed a summons for production, following which the documents were produced. Reportable conduct interviews were also conducted by the first respondent with the applicants on 15 February 2024.
23. On 16 February 2024, an assessment consultation took place between the first and second respondents and, by letter dated 19 February 2024, the applicants were notified of the removal decision. The applicants dispute that the contents of the letter represents an accurate representation of the four interviews conducted of the children and the applicants on 14 and 15 February 2024.
24. Proceedings were commenced by the applicants against the respondents on 26 February 2024. They filed supporting evidence and applied for a stay, which was listed for hearing on 8 March 2024 before Senior Member Lucy. The respondents both opposed the application. At the conclusion of the hearing, the Tribunal made an order staying the first respondent's removal decision pending further order with conditions that GFZ was not to care for the younger child unless she was in the presence of an adult with a working with children clearance check, the applicants were not to yell within earshot of the children or to use physical contact as a way of managing the children's behaviours and GFZ must remain engaged in seeing a psychologist at least fortnightly and must complete the circle of security course.
25. Extensive evidence was submitted by the parties and the Tribunal, after considering this evidence, made a determination in respect of the matter, albeit on an interim basis, about the best interests and wishes of the children.
26. Senior Member Lucy was satisfied that the stay would secure the effectiveness of the determination of the application because if the children were not returned, they may become settled in another placement and this may ultimately defeat the application. She noted that the respondents opposed the stay because they considered it was in the best interests of the children to remain where they were while the proceedings were being heard and determined. Senior Member Lucy noted that the applicants had a significant interest in having the children returned and they had developed an attachment to the children. However, she gave greatest weight to the interests of the children, finding that there were several aspects that were relevant to the children's interests, such as not being re-traumatised or having the attachment they have to the applicants disrupted, as well as their interest in living with each other as half siblings.
27. The Tribunal noted with concern the self-reported incidents and the biting incident on 28 January 2024 but also noted that before coming to live with the applicants, both children had traumatic backgrounds and had a number of psychiatric or cognitive issues. Senior Member Lucy noted that there were reports that in February 2024 the youngest child's behaviour was dysregulated and that her behaviour was very challenging. She observed that it was a positive sign the applicants were reporting the behaviour and engaging with the first respondent about the behaviour but also noted it was concerning that the behaviour was occurring, although it was "beyond the scope of an interim hearing to determine the cause of that behaviour". Relevantly, Senior Member Lucy stated: In circumstances where the children had traumatic childhoods it is not possible for the Tribunal, particularly on an interim application, to know whether or not the behaviour in February was related to the Applicants' parenting style or something completely different.
28. Senior Member Lucy relied on a letter to the Tribunal from Dr Robert Redwin, child and adolescent psychiatrist, dated 7 March 2024. Dr Redwin had been treating the younger child since March 2021. She referred to his report as follows: Dr Redwin states in the letter that clearly the Applicants have been overwhelmed at times and have not managed parenting in ways they wished they had. He says they have expressed their sincere shame at being overwhelmed at times by frustration but says that in his experience loss of parental self-control happens occasionally in most families and especially in families caring for high needs children. He says he is not condoning abusive parenting but he recognises that parenting [younger child] is a much greater challenge than most parents face and says he fears that the pursuit of the perfect can be the enemy of the good enough. He expresses a concern that [younger child's] removal from her foster carers of the last four years would result in much distress for [younger child], increasing her separation anxiety, a loss of the emotional intelligence gains she has made, and greater difficulty in emotionally connecting with others for fear that they will disappear on her.
29. Senior Member Lucy stated that she had given some weight to the children's express wishes that they wanted to return to the applicants, although she noted, as cautioned by the respondents, that those wishes should be treated with a degree of caution. She had regard to evidence from the first respondent about concerns that it had, and the results of interviews conducted with the children on 14 February 2024. In granting the stay, Senior Member Lucy delivered an oral decision, which was transcribed, and found as follows: In my opinion the evidence does not establish that there is an immediate risk to the safety and welfare of the children in returning to the care of the Applicants. There have certainly been some incidents which are cause for concern. However, the Applicants have expressed regret and remorse for these incidents and have taken steps to ensure that such incidents won't happen again. I've had regard to the opinions of [younger child's] psychiatrist about the effect on [younger child] in terms of separation anxiety and loss of emotional attachment. Whilst it is true that the Applicants could continue to have contact with the children until the determination of these proceedings, from a child's point of view that's a very different thing in terms of maintaining attachment and security, than living with the people who it appears the children regard at least in some way as their parents. Whilst also recognising that they have biological parents to whom they are also attached. I have had regard to the heightened emotional state in the house and to the cumulative behaviour over a long period of time which both respondents have pointed to as being a concern. This in my opinion can be adequately addressed by providing a conditional stay with conditions, which I'll come to in a minute, but in similar terms to those proposed by the Applicants. A stay, there is no prohibition on applying to revoke a stay, that can be done at any time. So should there be any evidence of any incidents of concern or any behaviour of the children at school or otherwise indicating any problem I note that it will always be open to the respondents to make an application to the Tribunal for the stay to be revoked, particularly if there's been a breach of a condition. I also have to have regard to the public interest in deciding whether to grant a stay. Submissions were put to me on the last time about this. It was submitted by the First Respondent that the least intrusive intervention should be followed consistent with the principles in the Care Act and that the children should stay where they are, that that would be the least traumatic for them. However the effect of the stay is to maintain what the status quo was before the children were removed and in my opinion that is in the circumstances the least intrusive intervention. The children will presumably see it as returning home rather than being moved to a different placement. I've also had regard to the issues the carers had with the previous safety plans or the safety plan that the respondents tried to put in place and to the First Respondent's submission that the carers said that the plan wasn't workable. However I'm satisfied that the carers are now prepared to put in place the proposed conditions that they've agreed to and they've explained why, that these new conditions are more workable than the previous ones. The respondent said or Ms Parson submitted that the primary legitimate public interest is to ensure that the standards of out-of-home care are maintained and to have regard to the paramountcy of the safety and wellbeing children. Balancing the wellbeing of the children in staying within a loving family where they have long-term attachments without any perceived risk. I find that in this situation the children's interests are better served by being in an environment with people with whom they've resided for a very long time and who plainly have a loving relationship with them. I've also had regard to the Second Respondent's submission about the potential harm to the children in moving them from placements in which they appear to be settled or at least happy back to the Applicants if the final determination of the Tribunal would be to remove them from the Applicants care, in which case the next placement they go to may not be so settled. Whilst that is a danger I think the position is one in which no decision is without risk or without potential negatives and there's no guarantee that the current placements that the children are in would remain until the end of the hearing in any event. So weighing all those considerations I've decided that it is desirable to grant the stay on the following conditions…
30. Following this hearing, directions were made on 14 March 2024 for the conduct of the proceedings and the matter was listed for a 5-day final hearing in June 2024. The first respondent lodged documents pursuant to s 58 of the ADR Act and evidence was filed and served by the parties.
31. On 26 March 2024, the applicants requested the issue of summonses to the first and second respondents, the children's school and to various health professionals. The summonses were returnable on 11 April 2024. The first and second respondents did not produce the requested documents on the return date and the first respondent objected to the summons. The dispute about the summons was listed for hearing on 24 April 2024 and on 29 April 2024, the Tribunal (Senior Member Mulvey) refused the request of the first respondent to set aside the summons and published his reasons.
32. Disputes about the provision of documents said to be relevant to the dispute was a contentious issue in the proceedings and forms the basis for complaints made by the applicants about the first respondent's conduct in the proceedings. It is therefore relevant to set out those extracts from the decision of Senior Member Mulvey, which deals with these contentious issues, as follows: GFY and GF said have filed an application in the Tribunal seeking administrative review of a decision made by the first respondent to remove from them the daily care and control of the two children. The Tribunal in February 2024 stayed that decision and imposed conditions. The subject summons seeks production of documents or records from March 2020 held by the first respondent, including but not limited to, all carer, child and reportable conduct files, in relation to the applicants and the subject children. It also seeks production of all records in relation to the administrative reviewable decision made on or around 19 February 2024, including but not limited to all permanency consultations, consultations with the Department of Communities and Justice and records seeking an alternative out of home placement, in relation to the applicants and the children. The first respondent argues that the summons on its face is incredibly broad as it seeks production of documents relating to four people (the two applicants and the children). I reject this submission. The summons is clearly relevant to both applicants and the two children with whom they have the daily care and control. The request for documents pertaining to the first respondent's decision to remove the two children has a legitimate forensic purpose as each of the four persons are the subject of the application. I have considered an applied the following principles when considering this application to set aside a summons as summarised by Deputy President Hennessy, as she then was in CPJ v the University of Newcastle [2017] NSWCATAD 350 at [8] to [12]: . [extract omitted] The respondent argues that all records are not apparently relevant to an issue in dispute. I also reject this submission. The dispute primarily relates to whether the administratively reviewable decision, that is, the removal of the children from the two applicants is the correct and preferable decision. Further, the Tribunal is to make that decision standing in the shoes of the decision maker, the first respondent. The Tribunal may set aside the decision and make a new one. It could decide to restore the children to the applicants. The Tribunal could affirm the decision or remit for further consideration by the first respondent. In my view, the request for production of all records relating to the administrative reviewable decision is for a legitimate forensic purpose. The request for documents has apparent relevance in the context of that expression, which is set out by the authorities. This is because they go to the relevant issue of the matters the Tribunal is to decide, as set out above. I find there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. I have considered the first respondent's contention that a considerable part of the category of documents in the summons has been produced pursuant to s 58 of the Administrative Decisions Review Act 1997. Notwithstanding, in oral submissions, the solicitor for the first responding conceded that a transcript of an interview with the subject children had not been produced in accordance with the obligation under s 58 because of the potential risk of harm to the children if the transcript was disclosed to the applicants. This is a relevant consideration. However, the documents should form part of the material before the Tribunal and any application for confidentiality could be made to restrict disclosure of that material. This in my view is not relevant to the present application, but I recognise, may be an application which is made when documents are produced under summons or produced as additional documents under s 58. A request for non-disclosure confidentiality is an application the Tribunal is routinely asked to consider. There is apparent relevance in the transcripts of interview, particularly where, those transcripts have or have not been used by the assessor in completing a risk of serious harm investigation. These types of documents are routinely put before the Tribunal when determining the best interests of the child and whether restoration of the child to out of home carers should or should not be granted. In relation to the contention of oppression, the first respondent submits that the summons request goes beyond the s 58 bundle. The first respondent would be put to significant costs, time and effort to respond to the summons. This is because of how the records are kept by the first respondent, where the records are stored and the searches that will need to be carried out in identifying, possibly redacting and determining the category of documents. I am not persuaded that the request is oppressive. The first respondent has made a commercial decision to provide out of home care case management to children on behalf of the second respondent for a fee. The first respondent must expect that some of the decisions it makes may come before courts and tribunals for review. It follows that all records which may pertain to that decision, whether they be case file notes, statements, invoices and reports, maybe call upon to enable at Court or Tribunal to dispose of applications made in accordance with the law. Those records should be kept in a way that is reasonably assessable to be produced when required. This type of request is one which agencies respond to on a daily basis before the Tribunal.
33. On 29 April 2024, the second respondent decided to engage Dianne Starkey, clinical psychologist, to prepare and expert assessment. The applicants declined to participate in interviews with Ms Starkey at that time. The applicants raised concerns that Ms Starkey was not provided with the NMT assessment report of Mr Kelly and the transcript of the reportable conduct interviews with the children on 14 February and March 2024.
34. There was a directions hearing on 7 May 2024 and the Tribunal was advised that the expert's report from Dianne Starkey would not be completed until 4 June 2024. There were ongoing issues between the parties raised at the directions hearing and the June hearing dates were vacated. The matter was subsequently listed for hearing for four days commencing 2 July 2024.
35. On 3 June 2024, Diane Starkey completed a report which was provided to the applicants on 5 June 2024. The report is 358 paragraphs and 234 pages in length. In summary, Ms Starkey notes the children's complex history and behavioural issues and in her "overall assessment" as to whether GFY and GFZ should continue to care for the children she concludes at [197] as follows: Provided the above supports and services can be put in place quickly and can be maintained consistently for as long as needed, examination of the advantages and disadvantages for the children of changing placements suggests that they would have a better chance of maintaining a higher level of stability and security if they were in a supported placement with their current carers. Without the necessary supports for the carers and for the children, this would not be the case. However, it is important to recognise that the supports suggested would need to be provided for any placement in which the children reside in the future because of their high needs and the likely pressure on any carers in the future. In terms of my use of the term "high needs", it is my opinion that the children should be formally viewed as having high needs, given the need for extensive interventions and supports and the fact that some at least of their difficulties are related to systemic issues in terms of their having had multiple placement changes while they have been in out of home care.
36. She noted that there were gaps in the services provided to assist in a "very complex situation" (at [185]) noting that the missing part of the puzzle is structured behavioural intervention and coaching which was part of the reason for the NMT assessment and behaviour support plan prepared by Matthew Kelly which appeared to "have taken quite a long time" but which she considered as "an essential and urgent need if the children are to remain with the carers (or even if they are going to be placed with alternate carers)" (at [186]).
37. In her "overall assessment", Ms Starkey further states at [198]-[199]: 198. However, I cannot give a definitive opinion about the viability of the children remaining in the care of GFY and GFZ without having assessed GFY and GFZ or having observed their relationship with [younger child] and [older child]. It is possible that they are not able to change the dynamic that has developed. It is possible they will not want to participate with the support services recommended. It is possible that they are so traumatised that they cannot get better while still in the trauma situation. It is possible that they are unable to repair their own relationship as a result of the incidents that led to the removal of the children and any other issues that may be affecting their relationship. 199. It is also possible that they have sought the appropriate therapy and have started to benefit from it. It is possible that their relationship is able to heal and that they are able to benefit from the behaviour management support suggested. It is possible that the family can move forward in a positive way. These things will determine whether or not the children can remain with GFY and GFZ because, as I am sure GFY and GFZ would agree, things cannot continue to deteriorate as they did between 2023 and early 2024. This would make the home environment unsafe for the children and for the carers.
38. To understand this statement, it is necessary to consider the earlier assessment made by Ms Starkey at [161] as follows: I have not assessed the carers but, based on my reading of the documents provided, it is my opinion that both carers have suffered trauma as a result of their commitment to caring for the children. Their love for the children and their desire to keep caring for them has overridden some of their self-preservation responses, leaving them very vulnerable. While I am sure from what they say they must experience many positives in their relationship with the children, there are also many complications that have led to physical and psychological concerns for them that have added to the stress in the household and have most likely contributed to the current concerns held by TBS and DCJ.
39. Ms Starkey provides further opinions about her impression of the placement as follows: 163. Based on my reading of the documents provided, and my discussions with the professionals involved with the children, it would appear that the carers do have the knowledge and understanding of the needs of the children, which they have reportedly demonstrated over the past four years. Dr Redwin commented that his contact with the carers suggested that they have a good level of understanding about trauma and its impact on the children's behaviour, as well as issues of attachment for the children. They have been able to frame the children's behaviour as a response to the trauma experience and the disrupted attachment trajectory they have experienced. 164. I note that the children are reportedly well cared for and that the carer review reports for the first three years praised their care of the children, as they reportedly provide good quality care with a trauma informed approach that was lauded by the report writers. Things deteriorated in 2023 which will be discussed more below but generally it would appear that the carers have the commitment, the knowledge and the understanding to assist the children's development. They have devoted their time to meeting the children's health, allied health and social needs even to the point of GFY giving up work to meet the children's needs as much as possible. … 169. However, medication (which is no doubt essential) and trauma-informed attachment-rich responses have not been sufficient to bring about change in the children's behaviour regulation. The carers need the assistance of structured behavioural intervention from a strong behavioural expert who can assist them with putting into place a programme of intervention aimed at extinguishing (or at least decreasing) the dysregulated behaviours. Attachment-rich responses are appropriate for children who have experienced trauma, but there also needs to be a more structured approach to the behaviour management involving firm limit setting. 170. I have not been provided with the report of Matthew Kelly, which I understand was meant to address this issue. I am uncertain to what extent he does do this, although I understand from Dr Redwin this was a very helpful and comprehensive report. What I do note is that in reading the TBS records it seems that Mr Kelly's report was a long time coming and was not accompanied by a supported intervention coaching programme with the carers, which I think would be essential. If Mr Kelly is unable to provide this, then an appropriate service should be sought to provide practical coaching support to the carers in relation to the day-to-day management of the children's challenging behaviours. 171. The other thing that the carers need, as far as I can tell without actually meeting them or speaking with their therapists, is appropriate interventions for themselves such as trauma counselling for GFZ in relation to her childhood experiences and their impact on her reactions to the children's behaviour; trauma counselling or processing for both carers in relation to the abuse they have experienced while caring for the children; and relationship counselling to assist with the impact on their relationship of the experiences of the last four years an the major ships this will have made to their relationship and capacity to work as a loving and united team. I have not assessed the extent of their needs, but these interventions are the ones that appear obvious from my perusal of the material provided.
40. This report is important because it is a comprehensive independent expert's report and was the impetus for the settlement of the proceedings.
41. The Tribunal was notified of an in-principle settlement on 30 June 2024 and the proceedings were listed on 3 July 2024 to settle the final form of the orders and resolve any dispute about access to the report of Dianne Starkey. The following orders were made by the Tribunal: The parties have agreed to, and the Tribunal makes, the following orders: 1 The decision of the First Respondent made on 21 February 2024 to remove from the Applicants the responsibility for the daily care and control of the two subject children, [oldest child and date of birth], and [youngest child and date of birth], is set aside. 2 The hearing dates of 4 July 2024 and 5 July 2024 are vacated. 3 All previous orders of the Tribunal are discharged, except for the order for summons, in accordance with the summons filed by the Applicants on 26 March 2024, directed to The Benevolent Society. 4 Leave is granted to the Second Respondent and his delegates (including designated agencies with case management) to provide a copy of the report of clinical psychologist Dianne Starkey, dated 3 June 2024, (the Starkey Report) filed by the Second Respondent in these proceedings, to the following: a. Designated agencies who hold, or are proposed to hold, primary case responsibility for the children. b. Anyone conducting a carer review in respect of the Applicants. c. Counsellors, psychologists, psychiatrists, paediatricians, and behavioural therapists working with the subject children and/or the Applicants, with the following redactions (unless otherwise agreed with the Applicants): the third and fourth sentences of paragraph 165, paragraph 171, paragraphs 190-192, the third and fourth bullet points of paragraph 204, and Annexure A in its entirety. 5 To the extent required, leave is granted to the Second Respondent and his delegates (including designated agencies with case management) to otherwise use the Starkey Report in internal casework, noting that this does not extend to leave to share the report with third parties other than in accordance with Order 4. 6 Leave is granted to the Applicants to provide the Starkey Report to their treating therapists, if they wish.
42. The Tribunal also made the following notations: Notations: The Tribunal notes the following agreement between the parties: 1 The Respondents have obtained in the proceedings the report of Dianne Starkey dated 3 June 2024 which has been filed with the Tribunal. Having regard to the report and the importance of the supports recommended in the report to be provided and to afford the Applicants the opportunity to engage with the supports, the Respondents and the Separate Representative have agreed that the decision under review should be set aside. 2 In relation to the implementation of Orders (4), the Second Respondent will also provide a copy of the Neurodevelopment, Attachment & Trauma (NATI) Informed Behaviour Assessment and Positive Behaviour Support Plan (PBSP) for both subject children, completed for [oldest child] in September 2023 and for [youngest child] in November 2023 by Matthew Kelly, SAL Consulting Pty Ltd, to the persons named, along with the copy of the report of clinical psychologist Dianne Starkey, dated 3 June 2024. 3 The report of clinical psychologist Dianne Starkey, dated 3 June 2024, includes sensitive and personal information about the Applicants, which the Applicants do not consent to being provided to third parties without their express consent. In this regard, the Applicants have agreed to the redactions in the Starkey report as noted in Order (4(c)). 4 Designated Agency, Life Without Barriers, has indicated to the Second Respondent that it has capacity to accept primary case responsibility for the subject children and carer authorisation of the Applicants, and is willing to commence the transfer process. This transfer process is anticipated to take 6 to 8 weeks after finalisation of these proceedings. The Second Respondent agrees to provide casework assistance during this 6-to-8-week period and, if the transfer is not accepted, then to assist with making enquiries to other agencies. The Second Respondent will also request that the authorisation of the children's respite carer transfer to Life Without Barriers at the same time.
43. Directions were made about the costs application and, following agreement by the parties, the Tribunal dispensed with a hearing of the application pursuant to s 50(2) of the CAT Act. There was correspondence between the parties in an attempt to resolve the application, which has been included in the costs tender bundles. There are also ongoing disputes about the production of documents and compliance with the previous summons to the first respondent. The parties make submissions about these matters, and this is outlined below.

Legal principles

1. Section 60(1) of CAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs. Despite this, s 60(2) provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Section 60(3) provides: In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
2. Section 60(4) provides that if costs are awarded, the Tribunal may determine by whom and to what extent costs are to be paid and may order cost to be assessed on the basis set out in the legal costs legislation. Section 60(5) provides that costs include the costs of or incidental to proceedings in the Tribunal.
3. Section 36(1) and (2) provide that the guiding principle for the CAT Act and the procedural rules is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and that the Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by the Act or the procedural rules or interprets any provision of the Act or the procedural rules. Relevantly, s 36(3) provides that a party to the proceedings, and an Australian legal practitioner or other party who is representing a party in the proceedings, is under duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.
4. As observed by the Appeal Panel in Kominda trading as We Paint Pools v Kelleher [2018] NSWCATAP 56 at [17]: The term "special circumstances" is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs.
5. In DZU v Foundations Care [2021] NSWCATAD 142, the Tribunal (per Senior Member Higgins and General Member Foreman) outlined the relevant principles in relation to a costs application made following the settlement of review proceedings under the Care and Protection Act. By the time of the settlement, the Tribunal had reviewed much of the evidence and there had been two days of hearing.
6. The Tribunal noted that s 60(3)(d) of the CAT Act provides that the Tribunal may have regard to the nature of the proceedings in determining whether there are special circumstances. In that case, as in this case, the Tribunal noted that the proceedings were in the nature of administrative review and were of a protective nature given the objects and principles in ss 8 and 9 of the Care and Protection Act.
7. Section 8 sets out the objects of the Care and Protection Act and provides as follows: The objects of this Act are to provide-- (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered 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.
8. Section 9(1) relevantly provides that the Care and Protection Act is to be administered under the principle that in any decision concerning a particular child or young person, "the safety, welfare and well-being of the child or young person are paramount". Section 9(2) includes other principles to be applied in the administration of the Act and, again relevant to this case, the principles that apply to a child or young person who is placed in out of home care. Notably, s 9(2) provides: (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.
9. The Tribunal further noted at [17] to [19] the following matters of principle: the fact that a party is successful or unsuccessful in his or her claim proceedings does not of itself give rise to special circumstances Jubian v Clark (No. 2) [2016] NSWCATAP 153 at [29]; a finding of serious unfairness is not a prerequisite to determining that there are special circumstances but is nonetheless a highly relevant consideration; if satisfied there are special circumstances, the Tribunal must further be satisfied there are circumstances warranting an award of costs Fitzpatrick investments Pty limited v Chief Commissioner State Revenue [2015] NSWCATAD 103 at [21] and the exercise of the discretion requires the Tribunal to "weigh whether those circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear their own costs" BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9].
10. In my view, DZU summarises, in a useful and authoritative way, the principles that should be applied and considered in a review of a decision under the Care and Protection Act.
11. Where there has been no hearing on the merits, how and to what degree the Tribunal can have regard to s 60(3)(c), namely the relative strengths of the claims made by the parties, including whether a party has made a claim that has no tenable basis in fact or law, has been considered by the Courts and this Tribunal in several cases dealing with costs. This is a critical issue in this case as the applicant has made extensive submissions about this issue and filed three volumes of documents, much of it focussing on the claimed unjustified position of the first respondent in removing the children. It is submitted that the decision to remove the children should not have been made or should not have been made without proper consultation and notice, and once proceedings were commenced the respondents should have considered the evidence at the earliest opportunity and agreed to resolve the proceedings, as they finally agreed to do just before the hearing. It is submitted that the applicants' claims were strong, and respondents' claims had no tenable basis in fact or law. These submissions necessarily raise issues about the merits of the proceedings.
12. In Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6: (1997) 186 CLR 622; (1997) 143 ALR 1 and (1997) ALJR 533 (Lai Qin), McHugh J considered the principles governing the exercise of the cost discretion in circumstances where the applicant achieved success by extra-curial means. In that case, the applicant commenced proceedings against the Minister pursuant to s 75(v) of the Constitution seeking writs of prohibition, certiorari and mandamus on grounds that the Refugee Review Tribunal had exceeded and misconstrued its jurisdiction when it affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. Before the proceedings were considered by the Court, the Minister exercised his discretion to grant the protection visa to the applicant. The applicant sought costs. His Honour observed as follows: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. [Footnote references removed]
13. In One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270 Burchett J cited the authority in Lai Qin and observed that in a case which terminates before there has been a hearing, it was accepted that the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial. However, his Honour noted that this was not an invariable rule and that it was well established that frequently the determining factor will be the reasonableness of the conduct of the parties (at [5]). Burchett J further states at [6]: In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
14. In making an order for costs, his Honour held at [7]: By contrast with the decisions I have been discussing, the present matter involves a clear winner. The applicants, by their proceeding, sought to challenge the validity of certain notices, and to have them set aside. The respondent, after initially defending those notices, encountered at least an evidentiary difficulty, and acknowledged that they were to be set aside. That means that the applicants have succeeded, just as the respondent succeeded in Ahmetaj v Minister for Immigration and Multicultural Affairs [1999] FCA 332, where a proceeding failed by reason of the occurrence of an event that was always liable to occur and to defeat the proceeding;
15. In Nicholas v NFS Agribusiness Pty Ltd [2018] NSWCA 84, the Court of Appeal (Basten, Meagher and Payne JJA) considered the question of whether costs should be ordered against one party in proceedings which were resolved without a hearing on the merits.
16. Payne JA (with whom Meagher JA agreed) held at [30]: If both parties to a proceeding which has been settled without a hearing on the merits have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
17. His Honour found (at [32]) that the primary judge, by proceeding to read the 200 plus pages of affidavit evidence, had taken an approach that was contrary to the principle in Lai Qin and as adopted by the Court of Appeal in many cases.
18. According to Basten JA, there is a tendency for litigation to feed on itself and where parties resolve their differences, except as to the costs already incurred in litigation, they should usually expect that the court will not award costs. That is because the general rule applicable in civil litigation in superior courts is that costs will "follow the event". But where there has been no trial there is no "event" because, except in unusual cases, it is not possible to say that one party has been successful and the other unsuccessful. The orders made by consent may or may not demonstrate capitulation by the "unsuccessful" party (at [2]).
19. Further to this, his Honour observed, referring to "fundamental errors" in the proceedings below, found, at [6] and [8] to [10] as follows: 6. First, weight was given to the fact that the applicants (being the defendants in the court below) appeared to have readily capitulated, allowing orders to be made against them as sought by the initiating party, by consent. However that fact is, by itself, neutral … 8. Secondly, although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon. 9. Thirdly, if contrary to the views set out above, it was appropriate to investigate whether the applicants or the respondent had been unreasonable, either in their conduct prior to the proceedings, or in their conduct of the proceedings, the approach adopted was untenable. Thus, regard was had to the motives of the respondent in commencing proceedings, but no account was taken of the motives of the applicants in capitulating. Further, once it is clear that there is a real dispute as to a significant fact in issue in the proceedings, it is inappropriate to determine that matter, other than in making an interlocutory ruling, by accepting one party's case without permitting the other party an opportunity to challenge the opposing party's witnesses. 10. Once it becomes apparent that such a course is required, the hypothesis on which the examination was undertaken is negated and the inquiry should stop.
20. Basten JA stated that he did not disagree with the reasons of Payne JA but preferred to rely on the statements of principle he had set out to "avoid any re-agitation of matters which should not have been agitated below" (at [11]).
21. It is relevant to note that in the case of DZU, by the time of the settlement the Tribunal had reviewed the evidence and the proceedings settled after two days of hearing. The Tribunal, even though not all witnesses had been cross examined, was able to form a view that the applicant's case was very strong (at [76]-[78]). According to the Tribunal, this was not a case, as in Fitzpatrick Investments, where there was no hearing of the evidence such that the Tribunal, in order to determine the issue of the relative strengths of the claims, would be required to conduct a hypothetical trial. In Fitzpatrick Investments, there was "a great volume of evidence" and according to the Tribunal it was "not in a position to determine in a conclusive manner whether the applicant's claim had no tenable basis in fact or law or was lacking in substance" (at [57]).
22. In FLP v Secretary, Department of Communities and Justice; FLF v Secretary, Department of Communities and Justice; and FLQ v Secretary, Department of Communities and Justice [2023] NSWCATAD 23 (collectively referred to as FLP), which was another case about the removal of children under the Care and Protection Act, the Tribunal made an order for costs after proceedings were settled on the basis of consent orders, setting aside the decision under review and returning the children to the care and control of the applicants, subject to undertakings. Like DZU, the Tribunal had reviewed the evidence filed and there had been three days of hearing. The proceedings were settled on the final day and, according to the Tribunal, it was still possible, and indeed was desirable, to discern a clear winner (at [57]). A limited costs order was made.
23. In BCA Constructions Pty Ltd v Arsovski [2024] NSWCATAP 31, the Appeal Panel considered the relevant principles in relation to costs where there was a settlement of proceedings without the Tribunal making a determination on the merits. The appeal turned on the question of whether the Tribunal had applied the correct principles in the exercise of the discretion on costs. The Appeal Panel found there was error and further found that for the owners to succeed the Tribunal would have had to be satisfied that this was one of those "unusual or rare cases", with reference to clear and incontestable information, that the owners would have succeeded, and a costs order would have been made in their favour. Having decided there was an error, the Appeal Panel went on to determine the matter under s 81 of the CAT Act and found that it was a matter of speculation whether or not the Tribunal would have found for the owner or the builder, there were factual issues in dispute, the consent orders and notations represented a compromise between the parties and they did not evidence a "capitulation" by either party. Overall, the Tribunal did not regard the conduct of either party, in bringing or defending the proceedings, or the conduct of the proceedings, to be so unreasonable that it warranted a costs order in favour of either party. It is also relevant to note that this was a building case where different costs rules apply under r 38 of the Civil and Administrative Tribunal Rules 2014.
24. Having regard to these cases and the legal principles, I do not propose to review all of the material before the Tribunal on the substantive matter to form a concluded view about who would have been the "winner" as to do so would be to conduct a theoretical trial. That is not warranted and would be inconsistent with the decision of the Court of Appeal in Nicholas and the guiding principles in s 36 of the CAT Act.
25. Section 60(3) sets out the matters that may be considered by the Tribunal in exercising its discretion on costs. One of those matters is the relative strengths of the claims made by the parties. In FLP and ors and DZU, the Tribunal was able to make an assessment about this because of the advanced stage of the proceedings before the settlement. In this case, little of the evidence has been reviewed other than for the purposes of examining the issues arising from the consent orders and notations. This is not necessarily one of those "unusual and rare" cases where it is apparent from clear and incontestable information that one or the other party was going to succeed. Despite this, there is information which is generally "incontestable" that points towards an outcome and the weight of this is one of the matters to which the Tribunal should have regard under s 60(3). This evidence is outlined above in the 'Background'.

Submissions

1. The applicants submit that special circumstances apply in this case and the general principle that each party bear their own costs should not apply.
2. First, the applicants submit the respondents have model litigant obligations and part of those obligations, as well established in Children's Court care and protection cases, is that the respondents have a duty, amongst other things, to deal with claims promptly and not cause unnecessary delay, avoid litigation, keep costs to a minimum and not rely on technical defences unless the state or agency would be prejudiced. The applicants submit that the Children's Court case decided by children's Magistrate Sheedy in Department of Communities and Justice and Phoebe and Katelyn Wilson 2024 NSWChC 9 at [133] to [135] provides guidance on what is to be expected of a legal representative acting for the Secretary in Care and Protection Act proceedings. The applicants submit that, taking into account this decision, it would be expected of the Secretary's legal representative and casework staff would undertake a number of steps in administrative review proceedings, including, as soon as possible and in any case at an early stage of the proceedings, identify the facts in dispute and the key issues that will need to be addressed and develop a case theory or case plan to obtain the necessary evidence to address those issues, properly consult with other parties and comply with all directions. The applicants also submit that the first respondent has model litigant obligations.
3. It is further submitted that the second respondent, as a joined party, is often joined to applications involving administratively reviewable decisions about children under the parental responsibility of the Minister, even where the respondent does not have primary case responsibility. The purpose of the joinder is primarily to assist the parties and the Tribunal given the Secretary's interest in a child under parental responsibility of the Minister. The second respondent did not make an application for the joinder to be revoked and, as such, continued to be involved in the proceedings and therefore continued to have model litigant obligations. The solicitors for the second respondent did not proactively review all of the relevant evidence and did not provide "good quality advice on the law and evidence, case management and the obligations of the model litigant to the second respondent". The relevant material was not provided to Diane Starkey, leading to limitations in her report. The recommendation of Ms Starkey did not change the position of the respondents until weeks after the report was released and after the applicants raised issues about the limitations in the report. The applicants submit that all that steps taken by Ms Starkey to complete the assessment should have been undertaken by the first respondent and the second respondent in the first place and before the removal decision. In other words, there were no surprises or anything new in Ms Starkey's report or recommendations.
4. The applicants submit that over the time the first respondent has had primary case management for the children, there have been examples that the first respondent did not carry out the 10 principles of good administration, which is referred to on the second respondent's website. Those principles include maintaining accurate, comprehensive and accessible records, actively managing unresolved and difficult cases and guarding against erroneous assumptions. The applicants submit that the decision-making process of the first respondent and the conduct of the proceedings evidenced certain failures. The applicants also submit that the second respondent, engaged in its own failures in administration and was complicit in the failures of the first respondent and the exercise of case management by the first respondent.
5. The applicants submit that, relevant to s 60(3)(a) of the CAT Act, the first respondent has conducted the proceedings in a way that unnecessarily disadvantaged them. The applicants are authorised carers and have been since 2019, GFY gave up paid employment in 2022 to look after the children, the applicants were not eligible for legal aid funding and funded their own legal representation and they were not advised of the removal decision when it was made and were not advised of their review rights on 21 February 2024, when they were notified of the removal decision. It is submitted that the first respondent acted in such a way as to ensure the children were removed, despite there being no urgency or immediacy of removal, before the applicants could seek a review of the decision internally or externally from the Tribunal. It is submitted that the first respondent withheld evidence from the Tribunal and the applicants and has continued to do so even after a summons has been issued to the first respondent.
6. It is also submitted that both respondents conducted the proceedings in a way that unnecessarily disadvantaged the applicants as neither were amenable to reconsidering their positions after the recommendations of Diane Starkey until this issue was raised by the solicitor for the applicants. The first respondent's actions and attitudes in relation to case management actively undermined the Tribunal's ability to properly review the matter and the action taken by the first respondent, after the stay proceedings, to raise the issue that respite care should be arranged with other carers, put unnecessary stress and pressure on the applicants. The first respondent did not implement the NMT report recommendations after they were made, and this meant that there was no evidence of the changes that could be made in the placement with the recommended support. The applicants did not specifically make submissions on s 60(3)(b) (whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings) but this is implicit in these submissions made in respective s 60(3)(a) of the CAT Act and these submissions made about the model litigant obligations.
7. The applicants submit that, relevant to s 60(3)(c) of the CAT Act, the respondents' evidence did not support an immediate removal of the children from the care of the applicants. The level of risk was not high or serious enough to warrant removal and the Tribunal found, in its consideration of the stay application, that there was more risk to the children of being removed from the applicants and then placed in separate temporary arrangements. The children were not in an unacceptable risk of harm in the care of the applicants and the safety plan the first respondent put in place was unreasonable, impractical and not developed with any professional expert advice. The respondents failed to take account of the evidence of the children's longstanding practitioners, especially Dr Leal and Dr Redwin. The applicants submit that the removal decision should not have been made which would have obviated the need for the applicants to bring the administrative reviewable action in the first place. The first respondent's application to set aside the summons had no tenable basis in fact or law. Even though the second respondent complied with its summons, it was silent on the application made by the first respondent to set aside the summons.
8. The applicants submit that the position of the respondents to seek to affirm the removal decision, up until 18 June 2024, also had no tenable basis in fact or law. If the first and or second responded had done what Diane Starkey did in preparing the assessment report, these proceedings would likely have not eventuated. The adversarial conduct of the first respondent after the removal decision appeared to focus on trying to build a case against the applicants rather than provided providing the needed supports to the children. The second respondent at all times could have exercised parental responsibility and stepped in to ensure these supports were provided but failed to do so.
9. It is submitted, by reference to s 60(3)(d) of the CAT Act that the proceedings in this case involved complex issues such as the children's high needs, case management issues and the need to review the children's situation through the lens of attachment and drama. The children's behavioural issues were caused by their complex histories and not by their current care environment and it was the applicants who needed to ensure that this information was presented that the information relevant to this issue from Mr. Kelly and Dr Redwin was presented to the Tribunal. Despite this, Ms Starkey still took a different approach and acknowledged the pre-existing issues and the support that was required.
10. In response to s 60(3)(e) of the CAT Act, there was no suggestion that the applicants' proceedings were frivolous or vexatious.
11. On the question of whether a party has refused or failed to comply with the duty imposed by s 36 (s 60(3)(f) of the CAT Act), the applicants submit that there was no genuine attempt by either respondent to consider the evidence, particularly after receipt of the expert evidence from the children's treating practitioners which the applicants had obtained and after the stay hearing, to negotiate or resolve the matter without a hearing. The first respondent had made up its mind and was not open to reviewing its own decision and this was clear from the refusal of the first responded to mediate the case after the stay application when the issue was raised around the time of the directions hearing on 14 March 2024.
12. The applicants also rely on s 60(3)(g) of the CAT Act, being other matters said to constitute special circumstances. The applicants submit that the respondents' concession to the removal decision being set aside was a capitulation. In the circumstances of the case, the capitulating or surrendering party will usually be required to pay the other party's costs. In this case, the Tribunal made consent orders consistent with a successful outcome for the applicants. By making these orders, the first respondent and the second respondent capitulated, and it was inevitable that the applicants would have succeeded as they had at the stay hearing and the summons hearing, if the matter had been fully tried.
13. In addition to this, the first respondent did not fully comply with a summons issued to it which is evidenced in the response by the first respondent of 14 August 2024. It is the obligation of the administrator to provide all relevant information in relation to the administratively reviewable decision to assist the Tribunal to make the correct and preferable decision. It is submitted that the applicants were put to considerable expense in seeking that the first respondent produce certain records called for, without a summons, and then they had to file a summons which the first respondent unsuccessfully argued should be set aside. The second respondent had been silent throughout this process and did not advocate for the first respondent to produce the relevant records that were required to assist the Tribunal in its review of the removal decision. As the holder of parental responsibility, the applicants submit that the second respondent should have taken a more active role in the proceedings.
14. The first respondent submits that there is nothing unusual about the trajectory that the proceedings have followed in this case, namely the first respondent, as the designated agency had serious concerns for the safety and well-being of the children and therefore remove them, an independent third party expert was engaged to assess the children and the carers in all the surrounding circumstances and the expert, weighing all the evidence, on balance, came to a conditional conclusion. Ms Starkey concluded that the children should remain in the care of the applicants but only subject to various conditions being put in place. The expert opinion was, appropriately, the determining factor in the respondents' decision to agree to the removal decision being set aside subject to conditions. The breadth and detail of the applicants' submissions do not assist, and the matter is straightforward. The first respondent has been a designated agency for nearly 15 years and has overseen the care of hundreds of children during this time. The first respondent is satisfied that it would have made the identical removal decision in similar circumstances and this view was further fortified by the fact that second responded and the independent expert both supported the removal decision.
15. The first respondent notes that the discretion to award costs is not unfettered and requires the Tribunal to take into account all of the circumstances. Relevantly it is submitted that being successful in and of itself is not a special circumstance. The first respondent refers to the decision in FLP, where the Tribunal made a costs order, noting the observations of the Tribunal at [64]: We are also alive to the possibility that an agency, who should be concerned to act to protect children, should not be deterred from acting regarding children's safety, if they are concerned that they may be bound to submit to a costs order on an application for review of a decision by the Tribunal. An award of costs should not act as a deterrent for future applications for the care and protection of the children. However, we were also mindful that every cost application must be considered on its own merits.
16. In considering that application on its own merits, the Tribunal made a costs order against the respondent for a specified period, being from the time that the final evidence had been filed by the applicants two weeks before the hearing up to the time of the settlement on the basis that the respondent had ample opportunity to consider the evidence which the Tribunal was satisfied was weighted heavily in favour of the applicants.
17. The first respondent submits that the underlying principle is that the parties to proceedings are ordinarily to bear their own costs, special circumstances are required, and all circumstances should be taken to account but, even if special circumstances exist, the discretion remains as to whether to award costs. In a matter that has not been heard, an award of costs could be made in circumstances where one party has acted so unreasonably that the other party should be awarded costs, and one party was almost certain to have succeeded. This is not such a case. In the case of protection of children, agencies should not be deterred from acting to protect children by the possibility of an award of costs.
18. The Tribunal's task in the proceedings was not to review the removal decision at the time it was made but at the time of the hearing of the proceedings. It is clear that the removal decision was made on the basis of a real and genuine concern that the children were not being provided with a safe, nurturing, stable and secure environment. The respondents concern lay with the safety, welfare and well-being of the children the subject of the proceedings. It had been approximately five years since the first respondent had made a decision to remove children from a placement. In making the order adjourning the application on 1 March 2024, Senior Member Lucy noted there were credible safety issues for the children which was established by affidavits filed for the first respondent.
19. It was originally proposed by the applicant's solicitor that an expert's report should be obtained in March 2024 and the respondents agreed to the joint appointment of an expert, being a neutral third party. The second respondent proposed Ms Starkey as the expert, and it took five weeks for the terms of reference to be agreed. On 19 April 2024 the applicants advised that they did not agree to participate in the assessment at that time because they wished to review the summons records from the seven summonses that had been filed, their care files and their personal information. This was not feasible given the timetable ordered by the Tribunal and Ms Starkey was not able to be briefed until 29 April 2024. Much less work would have needed to be done if the applicants had agreed to take part in the assessment. The report was not an unequivocal endorsement of the applicants in any event. After receiving the Starkey report, the first respondent seriously considered the report and there was a discussion between the respondents. On 18 June 2024 there was a proposal for the decision under review to be set aside, subject to supports being put in place. The two-week delay was reasonable in the circumstances and the applicants have not pointed to any work that was wasted in the time between the Starkey report being served and the settlement.
20. In addressing the particular issues raised by the applicants, the first respondent submitted it is not bound by the model litigant obligations, although it is acknowledged that the first respondent would always seek to uphold principles of fairness and reasonableness in all dealings including with carers, including in any matters before the Tribunal. The first respondent rejects the contention that it failed to comply with the 10 principles of good administration referred to by the applicant in its submission, notes that unsubstantiated allegations were made in relation to withholding of evidence and submits that there was no connection made between the allegedly poor case management practices and the costs application. It was denied that the first respondent conducted the proceedings in a way that unnecessarily disadvantaged the applicants. The fact that the applicants were not advised of their review rights was explained as an omission, but they cannot have been disadvantaged by this in the conduct the proceedings in any event as this occurred prior to the commencement of proceedings. The first respondent consented to the Tribunal hearing the matter despite the fact that there had not been an internal review. The removal decision was made prior to the commencement of proceedings.
21. There was a mediation on 2 May 2024 and there is no evidence that an early mediation would have resolved some if not all the issues in dispute as no progress was made on the substantive issue of whether the removal decision was to be set aside because the Starkey report had not been received at that stage. The first respondent suggested after the stay that the issue about whether further respite care should be ordered with the other carers up to the time of the hearing was proposed because it was genuinely believed that this would be in the children's best interest and would be useful for the applicants. This was a position supported by the second respondent.
22. It is submitted that the Tribunal did not make a finding that there was more risk to the children being removed and it is submitted that the stay order was based on a range of circumstances and considerations, including the imposing of conditions. The first respondent denies that it had improperly failed to comply with the summons, and it is unclear what the applicants say the respondents should have undertaken, that was undertaken by Ms Starkey, in preparing the assessment report.
23. An application for administrative review of a removal decision, as was the case in these proceedings, is not overly complex or outside the usual matters the Tribunal is called on to consider.
24. The respondents did not capitulate, and the orders were made disposing of the proceedings with a significant notation about the expert report of Dianne Starkey and the supports recommended in the report. The respondents agreed that the decision under review should be set aside provided those supports were in place. It was therefore not inevitable that the applicants would have succeeded. It was significant that the separate representative for the children also agreed to the removal decision being set aside on the basis of the notation. Where there had been no hearing or determination on the merits, a court or Tribunal would only rarely determine - hypothetically, who would probably have won the case.
25. The first respondent raised concerns about the summons issued and reproduced, in its submissions, the detail of the correspondence between the parties on these matters, noting that the first respondent had on a number of occasions requested the scope of the summons be reduced to a more reasonable scope. It had produced approximately 4,898 pages of records as well as approximately 1,373 pages of records in the section 58 bundle and had incurred significant costs for printing and the appropriate redaction of the records.
26. The first respondent further takes issue with concerns raised by the applicants in relation to the reportable conduct interviews, the contention that the first respondent had organised visits between the applicants and the children on Fridays, being the hearing dates for the stay application, and the contention that the applicants had to issue a summons because the documents produced under section 58 of the ADR Act were incomplete.
27. By letter dated 8 August 2024, an offer was made on a Calderbank basis that there be no costs. On 11 September 2024, the first respondent made an offer to settle the costs application against it for the sum of $13,750, which was rejected by the applicants.
28. The second respondent also submits there should be no order as to cost. It is submitted that the existence of any of the circumstances identified in s 60(3) does not necessarily mean that costs should be awarded, and it is always a question of degree. The issue of costs remains an inherently discretionary decision. It is submitted that even if the Tribunal finds special circumstances exist and the discretion to award costs should be exercised, it does not necessarily follow that across order should be made in the term sought by the applicants. It is submitted that the conduct of the parties is a relevant consideration but the power to award costs should be exercised with caution, particularly with respect to administrative decision making in relation to vulnerable persons. Limited guidance can be taken from the Children's Court decisions summarised in the applicants' submissions. This is not only because the relevant legal test is different but because the relevant circumstances to be assessed are different.
29. It is submitted that greater assistance, while not a binding precedent, can be found in the Tribunals prior to termination of costs applications in administrative review decisions of decisions within the scope of 245 of Care and Protection Act. The second respondent notes that while DZU and FLP were ultimately settled, consent orders were made after two or three days of hearing on the substantial issues in dispute and the cross examination of multiple witnesses. This allowed the Tribunal to make findings of disputed facts, favourable to the applicant, and adverse findings were made in respect of the conduct of the respondents beyond unsuccessful opposition to the applicants. It was also significant that costs were not ordered in full in either matter but limited to the hearing days and a specified period or task.
30. There are four other decisions where the Tribunal declined to award costs, including BMA & BMB v Department of Family and Community Services (No 2) [2015] NSWCATAD 93; CCC & CCD v Department of Family and Community Services [2016] NSWCATAD 10, FMV v Wandiyali [2023] NSWCATAD 288 and FWY v Biripi Aboriginal Corporation Medical Centre (No 2) [2023] NSWCATAD 208. In CCD & CCD and FWY, each of the applications were withdrawn during or shortly before the final hearing. In the other cases, the hearings proceeded in full, with the Tribunal finding against the respondent in published reasons.
31. In response to the s 60(3) considerations, the second respondent notes that when there are multiple respondents to proceedings and their positions are similar, the opposing party or parties may feel disadvantage more keenly. It was also noted that in the decision of FLP, the Tribunal appeared to accept that failing to produce a document within the scope of s 58 of the ADR Act may put a party at unnecessary disadvantage but this did not appear to form part of the ultimate basis for the costs order and was rejected as a basis for costs in BMA & BMB and FWY. The second respondent submits that the applicants' submissions focus on the second respondent holding a position contrary to the applicants. The criticisms in relation to the case work decisions of the respondents and the second respondent not arranging a transfer of case management responsibility in the course of the proceedings arise from untested evidence and it is unclear how this amounts to disadvantageous conduct of proceedings. While it is noted that the applicants' submissions did not address this directly, the second respondent submits that at all stages it sought to advance the proceedings quickly and efficiently.
32. On the factor set out in s 60(3)(c), the second respondent submits that the most significant facts are not in dispute, but the dispute was in the nuance behind those facts, and the attribution of responsibility and their application to the issue of unacceptable risk and the children's welfare. This assessment is a sensitive task, which the second responded appropriately arranged to have assessed by an independent and appropriately qualified expert at an early stage in the proceedings. She did not reach a concluded view about GFY and GFZ, as explained at paragraphs 198 and 199 of her report. The respondents' decision to settle the matter meant that the underlying attitudes and capacity of the applicants was untested in cross examination. It is submitted that the outcome of such testing could not be predicted with the confidence claimed in the applicants' submissions. Ultimately the second respondent took the position that the applicants, and indirectly the children, should not be exposed to further stress of litigation until the specific recommended supports had been implemented and trialled. This was not a capitulation but rather a decision that prioritised the welfare of the children and ultimately, reduced the legal costs incurred by the parties.
33. It is agreed that there was a degree of objective complexity in the matter however it is admitted that this complexity, and whether it can amount to special circumstance, must be assessed by reference to the nature of the proceedings. There is a degree of almost inevitable sensitivity and difficulty in such matters. In summary, these were proceedings where there were substantial facts in agreement and the underlying complexities were sought to be resolved through expert opinion.
34. The second respondent acknowledges that the proceedings were not frivolous or vexatious or otherwise misconceived or lacking in substance but disputes that there was no genuine effort to consider the evidence and resolve the issues. It is noted that the parties participated in a day long mediation which ultimately led to settlement discussions. The second respondent submits that it was not until the respondents had the opportunity to review Ms Starkey's report, which was lengthy, detailed and did not reach a certain conclusion, that the matter could be seriously considered.
35. The second respondent denies that it has not acted as a model litigant or that the Crown Solicitors Office had failed to discharge its statutory obligations.
36. The second respondent was joined to the proceedings on the Tribunal's own motion. The joinder was not opposed by the applicants. The second respondent attempted to navigate the complexities and avoid duplication by limiting evidence to case work by the respondent. If the Tribunal is of the view that the second respondent's efforts in the conduct of the proceedings fell short, there is no evidence to suggest that they were malicious or negligent. Ultimately, Ms Starkey's report was the instrument to the consent position reached by the parties. The report was served within 48 hours and a settlement position offered within 14 days. Further legal expenses after this date resulted from minor disputes as to the wording of the notations on the release of Ms Starkey's report to third parties. These were also ultimately resolved by consent.
37. The applicants filed submissions in reply. In summary, the applicants submit that they do not agree with the first respondent's simplification of the matter or that the proceedings would have followed a fairly common directory trajectory. It should be noted that many of the submissions made by the applicants in reply where responsive to the fundamental concerns raised by the applicants about the conduct of the case management, as opposed to the conduct of the proceedings. The applicants submit that, insofar as it is contended that the determining factor in the respondents' decision to agree to the removal decision being set aside was the recommendation made by Dianne Starkey, it is noted that her recommendations were that the care should remain with the applicants subject to three main types of support being provided, being structured behavioural intervention and coaching, additional respite and work on the relationship between the carers and children in an attachment-rich way. The applicants submit that they had been advocating for these supports for some time before the removal decision and during the course of the Tribunal proceedings. The first respondent refused to fund or progress these much-needed supports and the second respondent did not exercise it's parental responsibility or its role as a joined parties proceedings to step in or advocate to ensure the children's needs were met.
38. Insofar as the applicants' admissions in reply seek to explore the granular detail of the issues raised in the substantive proceedings, for the reasons stated earlier, I do not propose to outline these submissions in detail as I do not consider that they significantly advance the determination of the application. Relevantly, the essence of these submissions made by the applicants in reply, as set out in paragraph 64 of the submissions, are to the following effect: 1. The applicants as carers of the children, have gone to considerable expense in bringing these review proceedings. 2. The proceedings are complex proceedings in law and fact and a considerable amount of work amount of material has been filed. 3. The proceedings involve, on its face, serious allegation against one of the applicants. 4. In these circumstances, the nature and complexity of the proceedings warranted the applicants seeking legal representation. 5. Both respondents had ample opportunity to review all the evidence and make relevant inquiries and should have been on notice of the strength of the applicants' case. 6. The Tribunal could be satisfied, as was Senior Member Lucy, that the evidence prior to the report of Dianne Starkey weighed heavily in favour of the applicants. This view could be formed from reading the chronology in these submissions for the applicant dated 19 August 2024 and the respondents' own records as well as the reports of experts including the children's treating practitioners. 7. The removal decision should not have been made and the proceedings were unnecessary. The proceedings only resulted in the parties and particularly applicants incurring significant costs and the children suffering harm and trauma. The recommendations made by Dianne Starkey mirror the requests of the applicants for a long time before the removal decision was made. It is therefore submitted that this is a case where the general rule that parties should bear their own course should be departed from. It is requested that the Tribunal makes an order for the applicants' costs for the substantive proceedings as well as for the costs application. According to a schedule of costs included in the applicants' evidence bundle for cost the proceedings, the applicants incurred costs in the vicinity of $49,902.05 from the commencement of proceedings up to the date of submissions in relation to costs, namely 3 October 2024.

Consideration

1. As is apparent from the background, the evidence filed in support of the cost application and the submissions made by the parties, these review proceedings were contentious and adversarial from the outset. The applicants contend that the removal decision should not have been made and if the first respondent had provided the applicant with supports and engaged with them before the removal decision, the expense and trauma of the proceedings would have been avoided. The first respondent contends the decision was justified because it had legitimate concerns about the safety and well-being of the children in circumstances where they were notified of reportable conduct by GFZ, particularly on 28 January 2024 which was serious in nature. The second respondents supported the removal decision.
2. There are two issues that arise from these matters. First, given the proceedings were resolved by consent orders, how can the Tribunal depart from the usual order that each party should bear their own costs when the Tribunal has not had a hearing and cannot make conclusive findings about who have would have been the "winner". Secondly, even if the Tribunal formed a view that the applicants had a strong case and would have succeeded, this does not, by itself, establish special circumstances under s 60(2) of the CAT Act. Relevantly, even if the Tribunal is satisfied there are special circumstances, the Tribunal still retains a discretion about whether it should make an order for costs.
3. The question of whether a party would succeeded or would have succeeded, namely the relative strengths of the claims made by the parties, is but one factor that may be considered as a special circumstance as provided under s 60(3)(c) of the CAT Act. Much of the applicants' and the first respondent's submissions seem to focus on whether the applicants would have succeeded and whether the consent orders amounted to a "capitulation" or surrendering by the respondents.
4. I have reviewed the material outlined above and have had regard to what I consider to be the incontestable material, including the interlocutory decisions in this matter. There is evidence that has been filed and relied on by the parties, which is untested. Examination of the extensive submissions of the parties reveals that contentious claims and counter claims have been made, especially as between the applicants and the first respondent. As noted, I do not propose to review this evidence or come to a view on the detailed submissions about these matters as to do so would involve a theoretical trial which is not warranted, defeats the purpose of the consent orders and is inconsistent with the guiding principle under the CAT Act. This is not a useful exercise in circumstances where costs are not usually ordered in any event.
5. However, having regard to this material, I am satisfied about the following matters which are relevant to this current determination: 1. The applicants were authorised carers from 2020 and the quality and suitability of their care was not challenged by the first respondent until about September 2023 when the applicants made a self-report in relation to the conduct of GFZ. The first respondent conducted investigations and no further action was taken. A further and more serious incident occurred on 28 January 2024, which was also self-reported, and it was after this conduct that that the first respondent, after consulting the second respondent, initiated the removal. 2. The self-reported incidents occurred in the context of the youngest child's escalating behaviour and difficulties GFZ had in dealing with those behaviours given her own background of trauma. 3. The Tribunal made a stay order on 8 March 2024, which was opposed by the respondents. The Tribunal found that the evidence did not establish that there was an immediate risk of harm to the children and, in balancing the well-being of the children, decided that the children's best interests were "better served" by returning them to the applicants. The Tribunal made the stay order and imposed conditions relating to GFZ, but this was also in recognition of the strain on GFZ of the cumulating behaviours of the children. This decision speaks for itself. 4. There is evidence the applicants attempted to initiate discussions to resolve the proceedings after the stay application. The respondents participated in a mediation with the applicants on 2 May 2024. There is no evidence, nor would it advance the determination of this application for costs, to analyse why the mediation did not succeed. However, it is apparent that the respondents wanted to defer the resolution of the proceedings until after they had obtained an independent expert's report and recommendations were made. 5. Section 58 of the ADR Act provides that it is the duty of the administrator, in this case the first respondent, to lodge all material documents with the Tribunal in respect of a decision which is being reviewed. This includes a copy of any statement of reasons and a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. While the obligation appears to reserve to the administrator the decision about what is "relevant" to the determination of the application, such consideration could not be merely be the subjectively view of the administrator and must have an objective basis, by reference to documents relied on by the administrator, or documents recording matters taken into account, when the decision made. 6. In this case, it was alleged by the applicants that the first respondent did not produce information that was relevant to the decision and that this required that they issue summonses to the respondents and third parties. There is evidence that the first respondent did not produce certain records that objectively would have been relevant to the removal decision and the applicants summonsed these documents from the first and second respondents and from third parties. While there is a dispute about whether the summons was necessary, the issue was resolved by the Tribunal on 29 April 2024 in favour of the applicants. The decision of Senior Member Mulvey extracted sets out the reasons for the decision. 7. Dianne Starkey was retained on 29 April 2024 and produced a report on 3 June 2024. The applicants did not participate in an interview with Ms Starkey as they were not satisfied all information had been referred to her. It is also apparent that by this stage, the applicants, rightly or wrongly, were feeling that the respondents were seeking to advance the case for removal, and they were concerned that the process would be unfair. 8. As things turned out, the report of Dianne Starkey was favourable. While the respondents characterise the report as "not being unequivocal", at the heart of reservations raised by Dianne Starkey was concern about the damage to the relationship between the applicants and the children and between the applicants given the escalation of the children's behaviours in 2023 and the supports that needed to be in place to ensure the placement could succeed. While some of these supports were particular to the needs of GFZ, it is apparent that they were supports that any placement for the children would have required given the children's complex needs. These were issues that had been raised by the applicants for some time and the first respondent was aware of them, yet there was delay in their implementation. 9. There were settlement discussions which ultimately led to the resolution of the proceedings by 18 or 19 June 2024, although the Tribunal was not advised of the in-principle agreement until 30 June 2024. 10. The terms of the consent orders provide for the decision under review to be set aside and the notations explain that the reason why the respondents decided to resolve their proceedings was based on the recommendations of the Starkey report.
6. Having regard to this incontestable material, I am satisfied that the applicants had good claims in support of their application for review that the removal decision should be set aside. As such, in considering s 60(3)(c), I am satisfied that compared to the claims made by the respondents, the applicants had a strong case. However, I also accept that the first respondent, when faced with an escalating situation, had cause to be concerned about the children remaining in the care of the applicants. As such, I am not satisfied that the first respondent's claims, which were supported by the second respondent, were not tenable in fact or law. Given the regime under the Care and Protection Act, the first respondent was justified to raise concerns.
7. I accept that the question for the Tribunal was not whether the removal decision was correct and preferable at the time it was made but rather whether it was the correct and preferable decision at the time of the hearing and the determination of these proceedings. Despite this, there is sufficient proximity between the removal decision and the settlement to warrant consideration of these matters. Relevantly, there was a stay and many of the contentious issues that arose in the proceedings related to the matters relied on by the first respondent when the removal decision was made. The fact that the first respondent has not removed a child in placement for the past five years carries little weight. I accept that the first respondent may not have taken this decision lightly but that does not mean the decision was, or remained, the correct and preferable decision.
8. While I note that the respondents do not agree that the consent orders were a "capitulation", ultimately, they agreed, albeit based on the recommendations of an independent expert, to the return of the children to the care of the applicants as authorised carers. In this regard, the applicants did succeed, and the complexities of the case were comprehensively examined and explained by Dianne Starkey in her report. The respondents submit the report is not unequivocal however this is an oversimplification. In making her recommendation, Dianne Starkey acknowledged the difficulties of the escalating behaviours and the impact this had on the applicants, recommending that additional supports be put in place. It is clear that the report was an acknowledgement of how difficult things had become for the applicants, which may have led to the reportable conduct. Ms Starkey's reservation is not about the applicants but rather whether the placement could succeed in the future given the problems that had arisen, and the supports needed.
9. Accordingly, I accept that it is more likely than not the applicants would have succeeded.
10. However, this is only one aspect of special circumstances and the exercise of the discretion on costs.
11. Other relevant factors include whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (s 60(3)(a)), whether the proceedings were unreasonably prolonged (s 60(3)(b)) and whether a party refused or failed to comply with the guiding principle set out in s 36(3) of the CAT Act (s 60(3)(f)).
12. I accept the submissions that the conduct prior to the proceedings, namely removal decision, does not fall within s 60(3)(a). However, it may be relevant to consideration of s 60(3)(c), namely the relative strengths of the claims made.
13. The broader issue is whether the adversarial approach apparently taken by the first respondent on some aspects of the case resulted in disadvantage, delay and a failure to comply with the guiding principles in the CAT Act. The submissions about model litigant obligations are something of a distraction and it is more useful to examine the conduct of the proceedings by reference to the issues that were in dispute.
14. The first respondent actively opposed the stay and there is evidence that it sought to re-agitate the issue by suggesting respite care with the other carers after the stay had been resolved. It was contended that this was in the best interests of the children and was also based on concern for the applicants. However, this was interpreted by the applicants to be unnecessarily combative, particularly given that the stay had been actively prosecuted, defended and resolved.
15. In addition to this, the first respondent unsuccessfully opposed the production of documents under summons, which documents arguably should have been produced pursuant to its obligations under s 58 of the ADR Act. It is also apparent that the relationship between the first respondent and the applicants deteriorated, not only is result of the removal decision but as in the conduct of the proceedings, such that the resolution of the dispute envisaged the transfer of the case management responsibilities from the first respondent to another designated agency or the second respondent. These are matters that added to the expense and delay in the proceedings and did little to facilitate the resolution of the disputes between the parties. Whether the second respondent could or should have done more the resolve these issues is moot given it is difficult to know what action was taken as between the respondents to try and resolve the issues.
16. It can be accepted, as was accepted by Dianne Starkey, that the applicants had tried to make the placement succeed, they needed more support to make it work, which the first respondent was mindful of and sympathetic to, but unfortunately those supports were not put in place during 2023. This may have exacerbated the applicants' difficulties in coping, which led to the reportable conduct, particularly by January 2024.
17. I am not satisfied that there was any malice from the first respondent in making the removal decision and that it was made in good faith. I am also satisfied that the first respondent, supported by the second respondent, maintained this position for several weeks after the Starkey report had been finalised.
18. In hindsight, and with the benefit of the Starkey report, it is apparent that the removal decision may have been premature, and that more consultation could have taken place. The applicants contend that the report of Dianne Starkey, or a similar review, could have been taken before the removal decision was made, which may have avoided the need for the proceedings. However, this contention must be assessed in the context of the obligation upon the first respondent, apparently supported by the second respondent, to ensure the safety and well-being of the children in care. The removal decision must also be considered in the context of the incident in January 2024 which was serious. The Starkey report, which is comprehensive and authoritative, took six weeks to finalise. It would be legitimate for a designated agency to be concerned about inordinate delay in making a removal decision in these circumstances.
19. These are difficult and complicated matters and a designated agency, or the second respondent with the appropriate responsibilities, may not always get it right. An award of costs under s 60(2) is not intended as a punishment. Section 60(3)(d) provides that the Tribunal may have regard to the nature and the complexity of the proceedings. Despite the contentions of the respondents, I accept that these proceedings involved complexities. The proceedings are review proceedings which have a protective subject matter, and the usual order is that each party is to pay their own costs unless they can establish special circumstances. As observed by the Tribunal in FLP it is important that a designated agency should not be dissuaded in taking appropriate action in a timely fashion to remove a child from care because of concerns about costs orders that may subsequently made if their decision is set aside. It is for this reason that I agree caution should be exercised in these cases. I accept it was appropriate for the applicants to obtain legal representation, which added to their costs, but the complexity of proceedings are matters that arguably lend weight to the usual order that each party pay their own costs. In any event, this is only one of the factors to be considered under s 60(3).
20. I accept the submission of the second respondent that the Children's Court cases are not analogous, and it is more useful to consider the approach taken by the Tribunal in other cases that have been determined under the Care and Protection Act. In a number of those cases, the Tribunal has declined to make an order for costs, even where the applicant has succeeded, has obtained legal representation and the proceedings raise complex and contentious factual issues. The Tribunal has found special circumstances in two cases, but limited costs orders were made in both cases. I have had regard to the decisions of this Tribunal and, in line with those cases and for comity and consistency, I have therefore adopted a cautious approach.
21. Having reviewed the material outlined above and the submissions of the parties and other decisions made by the Tribunal on these matters, I find that special circumstances exist and that an award for costs should be made but for a limited period and in limited circumstances.
22. I order that the first respondent pay the applicants' costs, as agreed or assessed, in relation to the issue of the summons to the first respondent and the application to set aside the summons. In my view, the first respondent should have produced much of this material and, in this regard, I rely on the published decision of Senior Member Mulvey. This is a special circumstance that warrants an order for costs.
23. I accept that once the report of Dianne Starkey became available, particularly having regard to the findings of the Tribunal on 8 March 2024, the report should have been served immediately (it is not clear why there was delay of two days) and the respondents should have made immediate arrangements to bring the proceedings to an end in line with the Starkey report. While I accept this may have taken a few days to arrange after the report was received, in my view two weeks was too long having regard to the urgency of the matter and the proximity of the hearing. The Starkey report was in favour of the applicants and, on a positive note, brought a number of important matters to the forefront, which needed to be considered by the respondents, and now the second respondent, given case management responsibility has returned to the second respondent. This is ultimately a good outcome for the applicants and the children.
24. The applicants contend that the proceedings should have been resolved soon after the stay proceedings were determined. I accept that the respondents should have seriously considered their position in relation to the case after the outcome of the stay application because, by this stage, they had the benefit of much of the evidence and the Tribunal's considered view about several factual matters in dispute. However, when the Starkey report is examined in detail, it is apparent that her recommendations and some of the delays were part of complicated and necessarily nuanced circumstances. On balance, I am not satisfied that the delay in agreeing the consent orders warrants an award of costs order from such an early date.
25. I accept that the comprehensive expert's report was warranted, and final resolution of the matter was delayed because this report unfortunately, but understandably, took some time to complete. In other words, there was scope for the proceedings to be resolved earlier but, in this case, it was delayed until the expert's report was finalised. This may not always be justified, but given the complexities in the case, I accept that there was a fine balance and difficult judgements about the issue. An award of costs and findings of special circumstances should not be a punishment for the respondent taking a conservative approach. The question will be whether it was measured and justifiable and not unreasonable and irrational. On balance, I accept the decision not to settle the proceedings until the expert's report was finalised was made in good faith and was not unreasonable.
26. Having regard to all of the circumstances, I am satisfied that special circumstances exist to warrant departing from the usual order but for the limited period from 6 June 2024, by which time the expert's views were known by all parties and there would have been sufficient time to negotiate an in-principle settlement to set aside the decision under review. The order for cists is up to the time that the in-principle agreement was reached. It is unclear from the submissions as to whether this was 18 or 19 June or whether it was not until 30 June 2024 when the Tribunal was notified of the settlement. I order that the respondents pay the applicants' cost from 6 June to 30 June 2024, noting if there was an in-principle agreement earlier the applicants would have incurred minimal costs from this time. I include the second respondent in this order as I accept the submission of the applicants that the second respondent had a responsibility to take a proactive role by this stage, given its involvement and the acknowledgement that case management responsibility would be transferred from the first respondent.
27. The applicants also seek the costs in pursuing the costs application. The respondents submit, as part of a general submissions, that there should be no order as to costs. There were attempts by the applicant to resolve the issue of costs prior to incurring the expense and the first respondent made a Calderbank offer on 8 August 2024, which was simply an offer that each party should pay their own costs. A more substantial offer was made on 11 September 2024 which was rejected but by this time many of the steps in making the submissions had been taken by the applicants. The only outstanding issue at that stage was that the applicants filed submissions in reply together with documents in support of their submissions. Once the issue of costs was raised, the parties should have attempted to resolve this issue, but a similar approach was taken to the costs application as was taken to the substantive case. As such, the issue is whether special circumstances need to be considered in relation to the costs of this application or whether they should follow the event and be consistent with my determination of the application. In my view, to make a different order would be unnecessarily complicated and would neutralise the impact of the favourable, albeit limited, costs order made. The applicants have partly succeeded, principally against the first respondent. I therefore order that the first respondent pay 25% of the applicants' costs of the costs application as agreed or assessed.
28. The first respondent seeks an order that the order for the summons issued to the first respondent on 26 March 2024 be discharged. I note from the submissions and correspondence that there still seems to be contentious issues between the applicants and the first respondent about compliance. However, I do not see any utility in these matters being pursued as between the parties. The substantive proceedings, and now the costs issues, have been resolved. I therefore order that the summons be discharged.

Orders

1. The Tribunal makes the following orders: 1. A hearing of the applicant's application for costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The first respondent is to pay the applicant's costs of and incidental to the summons issued to the first respondent dated 26 March 2024 and any costs of and incidental to the application to set aside the summons which was determined by the Tribunal on 29 April 2024. 3. The respondents are to pay the applicants' costs incurred after 6 June 2024 until 30 June 2024. 4. The first respondent is to pay 25% of the applicants' costs in making the costs application. 5. The abovementioned costs are to be paid as agreed or assessed on the basis set out in s 60(4)(b) of the Civil and Administrative Tribunal Act 2013. 6. Otherwise, the parties are to bear their own costs. 7. Any ongoing obligations in relation to the summons issued to the first respondent dated 26 March 2024 are to be discharged.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 10 December 2024 - Paragraph 49 - Name of respite carer, removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2024