Children's Court New South Wales

• Medium Neutral Citation: Director General of the Department of Family and Community Services v Amy Robinson-Peters [2012] NSWChC 3
• Decision date: 10 February 2012
• Jurisdiction: Care and protection
• Before: Judge Mark Marien SC, President

Decision

Section 88 of the Care Act provides the Court with the power to award costs only against the party to the proceedings and not against a non-party such as a legal representative. Mother ordered to pay the father's costs of the application.

• Catchwords: CHILDREN - care proceedings - application for costs under s 88 - extent of Children's Court jurisdiction - exceptional circumstances - doomed to fail - gross incompetence of solicitor amounts to exceptional circumstances - s 88 does not extend to costs against non-party
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Family Law Act 1975; Commonwealth of Australia Constitution Act (The Constitution); Commonwealth Powers (Family Law-Children) Act 1986; Children's Court Act 1987; District Court Act 1973; Local Court Act 2007; Civil Procedure Act 2005; Legal Profession Act 2004
• Cases Cited: S v Department of Community Services [2002] NSWCA 151; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Louise v Director General of Community Services & Ors [2011] NSWSC 1646; Grassby v The Queen (1989) 168 CLR 1; Jayasinghe v Minister for Immigration and Ethnic Affairs and Another (1997) 145 ALR 532; Chandler v Alberta Association of Architects [1989] 2 SCR 848; Fish v Solution 6 Holdings Limited [2006] HCA 22; Australian Co-operative Foods Ltd v SW and JD Reilly and Sons Pty Ltd [2011] NSWCA 148; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; Allianz Australia Insurance Ltd v Crazzi and Others [2006] NSWSC 1090; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; R v Kelly (Edward) [2000] 1 QB 198; R v Buckland [2000] 1 WLR 1262; Ho v Professional Services Review Committee No. 295 [2007] FCA 288; Awa v Independent News Auckland [1996] 2 NZLR 184; SP v Department of Community Services (DoCS) [2006] NSWDC 168; Director General of the Department of Human Services and Ellis-Simmons [2011] CLN 4; Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153; Knaggs v JA Westaway & Sons Pty Ltd and Others (1996) 40 NSWLR 476
• Category: Costs
• Parties: Mr Peters (father); Ms Robinson (mother); The Director General; Amy Robinson-Peters (child)
• Representation: Ms Renshall for the father; Mr A. Nasti for the Director General; Mr Potkonyak for the mother; Ms Canning, independent representative for the child N/A
• File Number(s): 510/11
• Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.

Judgment

1 On 16 December 2011 I dismissed an application for leave brought pursuant to s 90 (1) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) by Ms Josephine Robinson who is the mother of the child Amy. Amy was born on [X] November 2003 (I shall hereafter refer to Amy as "the child"). The father of the child is Mr Kane Peters. The mother's application for leave was opposed by the Director General, the father and Ms Canning who appeared as the independent legal representative for the child.

2 Following upon dismissal of the mother's application the father now seeks, pursuant to s 88 of the Care Act, an order for costs against the mother's solicitor, Mr Potkonyak.

3 Upon the application for costs Ms Renshall appeared for the father, Mr A Nasti appeared for the Director General and Mr Potkonyak continued to appear for the mother. The Director General and the independent legal representative for the child do not seek a costs order.

History

4 On 29 July 2006 the child was assumed into care by the Department following risk of harm reports being received in relation to the mother. The child was removed due to alleged alcohol abuse by the mother, the child's exposure to physical harm and concerns about the mother's mental health. The child was initially placed in foster care and on 11 August 2006 she was placed in the care of her father. The child has been in the continuous sole care of her father since that date.

5 On 22 March 2007 final orders were made in the Children's Court placing the child under the parental responsibility of the father save for the issue of contact which was allocated to the Minister until the child attained the age of 18 years.

6 In January 2008 the Department filed a s 90 application following the breakdown in the relationship between the mother and her partner. The mother's partner had been nominated as an acceptable contact supervisor but he was no longer able to supervise the mother's contact with the child.

7 On 16 October 2009, after a five-day hearing, the court made final care orders in relation to the child. The court made a finding that there was no realistic possibility of restoration of the child to the mother's care and made orders placing the child under the joint parental responsibility of the Minister and the father until the child attained the age of 8 years and thereafter parental responsibility was placed solely with the father to the exclusion of the mother until the child attains the age of 18 years. The court also made contact orders and orders accepting undertakings from the mother and the father. With respect to contact, the court ordered that until the child attains the age of 8 years, there be minimum contact between the mother and the child twelve times per year for a period of four hours, such contact to be supervised. A notation to the orders provided that upon the child attaining the age of 8 years that the contact move to an unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes.

8 In August 2011 the mother filed an Application in the Federal Magistrates Court seeking parenting orders under the Family Law Act 1975. Mr Potkonyak acted for the mother on that application. The father was a party to those proceedings. On 10 October 2011 the mother's application was dismissed for lack of a written consent by an authorised officer of the Department under s 69ZK of the Family Law Act 1975.

9 On 14 October 2011 the Department wrote to Mr Potkonyak advising him that the Department did not consent to the jurisdiction of the Family Court. The Department stated:

"As there have previously been child protection concerns regarding the child, and there is a care order in place, it is considered the most appropriate course of action is for the mother to make an application in the Children's Court pursuant to s 90 of [the Care Act] to vary or rescind the orders".

10 On 9 October 2011 the mother filed in the Children's Court an Application for Leave under s 90 (1) to rescind the orders of 16 October 2009. The Application stated that in accordance with s 90 (2) of the Care Act, the significant changes in relevant circumstances since the order was made are as follows:

"Grounds for the care and protection orders ceased to exist after [X] November 2011."

11 The date there referred to was the child's eighth birthday. The Application states that the grounds relied upon are:

(1) What will remain of the original care and protection orders after [X] November 2011 is only the ancillary order allocating parental responsibility to the second respondent, the father of the child, who is separated from the mother.

(2) Making of a parenting order on its own, without a care and protection order supported by the s 71 grounds, is outside of the jurisdiction of the Children's Court.

(3) Purported power of the Children's Court to make parenting orders under the [Care Act], when there is no need for a care and protection order, is repugnant to the Constitution (Cth), by virtue of s 51 (xxii) and s 109.

12 The description of the order of the Children's Court placing parental responsibility for the child solely with the father after the child's eighth birthday as a "parenting order" is misleading. A "parenting order" is made under the Family Law Act 1975. The order of the Children's Court placing the child in the sole parental responsibility of the father was a "care order" being an order under Chapter 5 of the Care Act "for or with respect to the care and protection of a child or young person...": s 60 of the Care Act.

13 Filed in support of the Application was an affidavit not made by the applicant mother but by Mr Potkonyak made on 19 October 2011. In his affidavit, Mr Potkonyak deposes as follows:

(a) My first attempt to commence the proceedings in the Federal Magistrates Court without Section 69ZK Certificate resulted in the dismissal of the mother's application.

(b) My attempt to obtain the Section 69ZK Certificate from an authorised officer of the Community Services (as required by s 69ZK of the Family Law Act 1975) has failed.

(c) In my respectful submission the current orders made under the [Care Act] will no longer be valid after [X] November 2011 and must be rescinded.

14 On 28 October 2011 the mother's application came before me together with two other unrelated s 90 (1) applications for leave (where Mr Potkonyak was also acting for the applicant mothers) in which I was told by Mr Potkonyak that he was raising similar arguments to the present case. Ms Renshall, for the father, submitted that the mother's application had no merit as it did not disclose any significant change in a relevant circumstance, was ill founded, was not pleaded properly and was not in a proper form. Ms Renshall asked that the father's costs be reserved.

15 In response, Mr Potkonyak submitted that the relevant change in circumstances was contained in the existing orders themselves, namely, that as and from [X] November 2011 (the date of the child's eighth birthday), a care order no longer existed and that as from that date there will no longer be care and protection issues and that therefore the court should rescind what he described as the "parenting order" in favour of the father. He submitted that the making of a "parenting order" without a care and protection order supported by grounds under s 71 of the Care Act is outside the jurisdiction of the Children's Court.

16 Without deciding the issue, it is highly doubtful that the very order made by the Children's Court on 16 October 2009 placing the child in the sole parental responsibility of her father after her eighth birthday could constitute "a significant change in a relevant circumstance" for the purposes of s 90 (2) of the Care Act. Firstly, in relation to the court's orders, no change has occurred. As was said in S v Department of Community Services [2002] NSWCA 151 by Davies AJA, the determination of whether there has been a significant change in a relevant circumstance:

"requires a comparison between the situation at the time when the application [for leave] was heard and the facts underlying the decision made or last varied."

17 It was the clear intention of the Children's Court in making its orders on 16 October 2009 that after the child's eighth birthday parental responsibility for the child would be placed solely with the father. In accordance with the court's order that has now occurred. There is no change in that regard. In the present case, what the mother needs to establish by way of a change in a relevant circumstance is that she has addressed the issues that led to the removal of the child. Regrettably, it appears that while the mother has been attempting to establish that she has addressed those issues, her legal representative, Mr Potkonyak, has thwarted her efforts by focussing only upon his "jurisdictional" argument.

18 Mr Potkonyak further submitted that there was a "fallback" constitutional argument. He said if his primary argument did not succeed he would take the matter to the Supreme Court on constitutional grounds. Mr Potkonyak submitted that the matter was urgent because the care order (placing joint parental responsibility in the Minister and the father) was about to expire (on [X] November 2011) and that following upon its expiration there is no provision for contact between the mother and the child.

19 After raising my concerns with Mr Potkonyak about the form of the mother's Application and the lack of evidence that she has addressed the issues which led to removal of her child, I made a direction that the mother file an Amended Application and supporting affidavit by 3 November 2011 and I adjourned the application to 4 November 2011.

20 On 3 November 2011 the mother filed an Amended Application for Leave and a supporting affidavit of the mother made on 3 November 2011. In the Amended Application the mother stated that the significant changes in relevant circumstances are:

(1) The current orders, apart form the order for parental responsibility, cease after [X] November 2011;

(2) There are no current concerns for the mother's mental health, and

(3) The mother has given birth to another child who has been in her care for 15 months, with no issues of concern.

21 Clearly, the matters in 2 and 3 above go to the heart of a proper s 90 (1) application for leave. But, as will be seen, in the end Mr Potkonyak, on behalf of the mother, abandoned reliance upon those matters and relied only upon his "jurisdictional" argument.

22 In the Amended Application the mother seeks to have the existing orders rescinded and replaced with orders:

(1) That the child reside with the father and have certain unsupervised contact with her mother and siblings;

(2) That parental responsibility for the child remain with the father, and

(3) That orders 1 and 2 remain in force until an assessment is made of the child's progress since making these orders but no longer than 12 months.

23 The Amended Application states that the following grounds are relied upon for the making of the orders sought:

(1) What will remain of the original care and protection orders after [X] November 2011 is only the order allocating parental responsibility to the father, who is separated from the mother.

(2) It is not in the best interest of the child not to have substantial and meaningful contact with her mother and her siblings.

(3) If the matter would be before the court for a fresh determination, there would be insufficient grounds, as specified in s 71, for making of a care and protection order. The circumstances leading to the making of the current orders have significantly changed.

24 In the mother's supporting affidavit she deposes that alcohol abuse is no longer a problem, that she is addressing her mental health issues through counselling. She deposes that she has two other children who live with her and that there are no child protection concerns in relation to those children. She states that she seeks unsupervised contact with the child at her home with her other two children.

25 The application came before me again on 4 November 2011. Mr Potkonyak advised me that the mother was not at that time seeking to disturb the order placing parental responsibility with the father and that the mother's Amended Application was confined only to seeking to vary the orders to make contact orders in favour of the mother. However, Mr Potkonyak continued to assert that the Children's Court had no power to make the "parenting order" which came into effect on [X] November 2011.

26 Mr Nasti, on behalf of the Department, pointed out that the mother had not filed any expert reports to support her case that she has addressed her mental health issues. Mr Nasti objected to the mother being given a further adjournment to file such material and he made an application that her application be dismissed. I refused to dismiss the application and I indicated that I proposed to set the matter down for a hearing on the papers then before me. The transcript records the following:

Potkonyak	"Your Honour can I put another proposal which I believe I should have done this up front, to take the matter to the Supreme Court and decide whether the Children's Court has jurisdiction to resolve the issue between the two parents when there are no bona fide care and protection issue, this is a jurisdictional order your Honour and we are beating around the bush and for the sake of public interest there are probably hundreds and hundreds of cases like this that the people have nowhere to go now as Your Honour.
His Honour	I don't see what the jurisdictional issue is, the court if you were successful on your leave application and establish a significant change in a relevant circumstances, the court could vary the current orders by making a contact order for the future beyond eight, does everybody agree with that?
Canning	Yes
His Honour	That's how we deal with it
Potkonyak	Yes your Honour but the thing is-
His Honour	What's being raised against you is where is the evidence of a significant change in a relevant circumstance when what was contemplated when these orders were made was that full parental responsibility go to the father.
Potkonyak	Yes but the only one that's missing was from Dr Heint, he wasn't available and that will be tendered, he is a psychiatrist whom the mother is seeing.
His Honour	How long do you need to file that?
Potkonyak	I may be able to contact him today, I don't know whether he's back or not but it would be before next time.

27 I then made directions that the mother file and serve any further affidavits by 18 November 2011, that the father and the Department reply by 1 December 2011 and I further listed the matter before me on 2 December 2011.

28 The mother filed a Further Amended Application for Leave on 23 November 2011 together with her affidavit and an affidavit of her daughter, Dianna Robinson, both made on 22 November 2011. In her affidavit the mother annexed various expert reports in support of her application.

29 When the matter next came before me on 2 December 2011 the Department sought a two-week adjournment to respond to the mother's material which had been served late. I asked Mr Potkonyak to confirm that the mother was only seeking variation of the current orders to provide for unsupervised contact by her with the child. Mr Potkonyak replied:

"Yes your Honour, the only way we could bring any application by a parent to this court is through s 90 application which is not proper. Because first of all your Honour the first argument will be that this court has no longer jurisdiction to deal with this matter, and if that argument is won then we really don't need any of the evidence or any of the further argument."

30 As Mr Potkonyak was now submitting that the Children's Court no longer has jurisdiction "to deal with the matter" I asked Mr Potkonyak why it was that the s90 application was brought and why he did not commence proceedings in the Supreme Court. Mr Potkonyak said that the reason he brought the s 90 application in the Children's Court was because:

".. once I went to the Supreme Court and Supreme Court was ruling because I had some other avenue I should have exhaust all these avenues first. So I will be quite happy your Honour to dismiss the application today so we can go-"

31 Mr Potkonyak was clearly requesting me to dismiss the mother's application to allow her to go to the Supreme Court. I did not at that time accept Mr Potkonyak's invitation to dismiss the mother's application and I made directions that the mother file written submissions by 15 December 2011 and that the Department reply to the mother's material by the same date. I adjourned the application to 16 December and I indicated that on that date I would list the application for a contested hearing in January 2012.

32 The submissions filed by Mr Potkonyak on 15 December 2011 made no reference to the requirements under s 90 of the Care Act for leave to be granted. There was no reference to the need to establish a significant change in a relevant circumstance since the care order was made or last varied ((s 90 (2)), nor was there any reference to the mandatory considerations for leave under s 90 (2A) nor, with respect to the need for an arguable case (s 90 (2A) (e)), did he refer to the considerations under s 90 (6). Rather, the submissions referred only to the mother's case that the court lacked jurisdiction "to hear any matter regarding the child, except, perhaps an application to rescind the current Children's Court orders on the grounds of lack of jurisdiction."

33 In his written submissions Mr Potkonyak contended that the "remaining order" (the order placing parental responsibility solely with the father after the child's eighth birthday) could not be made by the Children's Court by operation of the Commonwealth Powers (Family Law-Children) Act 1986 ("the Commonwealth Powers Act"). Mr Potkonyak argued that under that Act certain matters otherwise within the jurisdiction of the Parliament of the State of New South Wales were referred to the Commonwealth Parliament under s 3 (1) (b) of the Act. Mr Potkonyak argued that the s 79 (1) (a) (i) power under the Care Act (which was the source of power for the Children's Court to make the remaining order) has been referred to the Commonwealth Parliament and as a result the Children's Court had no jurisdiction to make the remaining order. Mr Potkonyak also argued that the refusal of the Director General to issue a s 69ZK certificate was invalid.

34 When the proceedings came before me on 16 December Mr Potkonyak confirmed that the only argument now being put by the mother was that the court should rescind the remaining order on the basis that the court had no jurisdiction to make it. Mr Potkonyak, on behalf of the mother, effectively abandoned what appeared to be the mother's previous case that the current orders should be varied by the Children's Court to provide for contact orders in favour of the mother. I again pointed out to Mr Potkonyak that if he asserts that the Children's Court did not have the power to make the remaining order then he should be seeking prerogative relief in the Supreme Court and not be proceeding by way of a s 90 application in the Children's Court. The transcript records the following:

Nasti:	Your Honour, the conclusion that my friend seeks to make is that the-and the order that was made in October and the order as it currently stands is without power, its ultra vires - well its beyond power. I should say, and that ultimately your Honour doesn't have the capacity to even hear his own argument. In short, Mr Potkonyak seems to be saying is that your Honour should determine whether this Court even has jurisdiction to hear her application and that's not appropriate. So I'm asking that the application be dismissed, your Honour.
His Honour:	Yes.
Potkonyak	Yeah, that will be easy for your Honour, to dismiss application today and we go to Supreme Court, it will be as simple as that.
His Honour:	All right. Very well.
Potkonyak:	Rather than waste more time.
His Honour:	If that's the basis of your application that this court does not have jurisdiction to make the order, the very order which you are seeking in a purported s 90 application to vary or rescind, then clearly the proceedings by way of a s 90 application in relation to the argument you propose to put to the court is just not an appropriate application, AND ACCORDINGLY I STRIKE OUT EACH OF THE s 90 APPLICATIONS."

35 I stated at that time that I had struck out the "applications" because I had formed the view they "were doomed to fail." (Technically, the only application before the court at that time was the latest amended application filed being the Further Amended Application for Leave filed on 23 November 2011 and it was only necessary to dismiss that application). The expression "doomed to fail" means that the cause of action "is so obviously untenable that it cannot possibly succeed", "is manifestly groundless", "is so manifestly faulty that it does not admit of argument", "discloses a case which the court is satisfied cannot succeed", "under no possibility can there be a good cause of action" and "be manifest that to allow [the pleadings] to stand would involve useless expense": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

36 My view that the application was doomed to fail did not relate to the prospects of success of a proper s 90 application in the Children's Court brought by the mother or the prospects of success of the jurisdictional argument in the Supreme Court, but related to the prospect of success of the jurisdictional argument in the Children's Court brought by the mother in a purported s 90 leave application.

37 By way of further history, I note that subsequent to the dismissal of the mother's application on 16 December 2011, the mother filed a Summons in the Equity Division of the Supreme Court seeking prerogative relief and relief under the parens patriae jurisdiction of the Supreme Court. On 22 December 2011 Slattery J dismissed the mother's claim for relief under the parens patriae jurisdiction and adjourned the jurisdictional argument to allow Notices under s 78B of the Judiciary Act 1903 to be issued by the mother. In refusing the mother relief under the parens patriae jurisdiction of the Court, Slattery J took into account that, putting aside the jurisdictional argument, the mother could still bring a further s 90 application in the Children's Court to seek to vary the current orders to allow for increased contact by the mother: Louise v Director General of Community Services & Ors [2011] NSWSC 1646.

Why the mother's "jurisdictional" argument had no prospect of success in the Children's Court

38 The Children's Court, like the Local Court, is an inferior court with a limited jurisdiction. Its jurisdiction is expressly conferred by statute. It is unable to draw upon the "well of undefined powers" which is available to the Supreme Court. However, notwithstanding that its powers may be so defined, the Children's Court also possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. These implied powers arise whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be derived by implication from statutory provisions conferring particular jurisdiction: Grassby v The Queen (1989) 168 CLR 1 per Dawson J at 16-17.

39 In making the orders of 16 October 2009 the court exercised powers expressly conferred upon it by s 79 of the Care Act (including s 79 (1) (a)(i) being the source of power for the remaining order). An inferior court must assume the validity of legislation which expressly confers jurisdiction upon it. Neither the express jurisdiction conferred on the Children's Court by the Care Act, the Children's Court Act 1987 or any other legislation or any implied power arising from any legislation empowers the Children's Court to rescind a care order on the ground that the Children's Court lacked jurisdiction to make the original order. Having made the remaining order and the order having been entered, the Children's Court was functus officio with respect to that order. The effect of the application of the doctrine of functus officio is that once a court performs a statutory function there is no further function or act for the court under the statute to perform: Jayasinghe v Minister for Immigration and Ethnic Affairs and Another (1997) 145 ALR 532. Apart from an application under s 90, the remaining order could only be re-opened by the Children's Court where the "slip rule" applies or where there was an error in expressing the manifest intention of the court: Chandler v Alberta Association of Architects [1989] 2 SCR 848. Clearly, neither of those exceptions apply in the present case. The only means, therefore, whereby the Children's Court could rescind the remaining order would be by way of a successful application under s 90 of the Care Act. An application to rescind under s 90 can only be made by leave of the court: s 90(1). To obtain leave, the applicant must establish that there has been a significant change in a relevant circumstance: s 90(2). Care orders may only be rescinded (or varied) by the Children's Court in terms of s 90 of the Care Act. The Children's Court has no power to rescind a care order on the ground that the court lacked the jurisdiction to make the original care order.

40 Mr Potkonyak was therefore mistaken in his belief that before obtaining prerogative relief in the Supreme Court he was required to commence s 90 proceedings in the Children's Court to rescind the orders. He could not be required to do so as no such proceedings could be brought in the Children's Court.

The father makes an application for costs

41 Having dismissed the mother's application, Mr McCaffrey, who was appearing for the father on that day, made an application for costs. I made directions that the father file written submissions on the issue of costs by 17 January 2012 and that Mr Potkonyak file submissions in reply by 23 January 2012. I adjourned the matter to 24 January 2012 to hear any further argument on the question of costs.

42 When the costs argument came before me on 24 January 2012 Ms Renshall, for the father, advised me that written submissions had not been filed on behalf of the father "because he is privately represented and does not want to incur further expense." That is hardly a proper explanation as to why written submissions were not filed in accordance with a direction of the court. It was also a curious position for the father to take as he was seeking an order for costs which no doubt would include the costs of Ms Renshall preparing written submissions. Nevertheless, I allowed Ms Renshall to make oral submissions on the question of costs and I adjourned the costs application and provided the opportunity to Mr Potkonyak to file written submissions by 31 January 2012. I also directed Ms Renshall to provide Mr Potkonyak with a schedule of the father's costs by 27 January 2012. I note, however, that without a direction being made and without leave, Ms Renshall filed further written submissions on behalf of the father on 6 February 2012. In these circumstances I have had no regard to those written submissions in determining the application for costs.

43 In his written submissions filed on 30 January 2012 Mr Potkonyak re-states his argument that the Children's Court lacked jurisdiction to make the remaining order. He submits that I erred in law "in refusing to determine, judicially, whether the Children's Court entertains jurisdiction to decide whether it has jurisdiction to make parental responsibility orders." Mr Potkonyak then goes on to refer to cases holding that a tribunal may "determine its own jurisdiction" and that a tribunal has the power to correct its own error: Fish v Solution 6 Holdings Limited [2006] HCA 22 and Australian Co-operative Foods Ltd v SW and JD Reilly and Sons Pty Ltd [2011] NSWCA 148; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; Allianz Australia Insurance Ltd v Crazzi and Others [2006] NSWSC 1090. Without deciding the issue, these authorities do not relate to the powers and jurisdiction of an inferior court such as the Children's Court to re-visit orders made by it. In any event, these submissions completely overlook the fact that when I dismissed the applications I did so at the request of Mr Potkonyak and that he said he did not wish to put any submission to me as to why the applications should not be dismissed. Mr Potkonyak is therefore completely mistaken when he asserts that I refused to determine whether the Children's Court has jurisdiction to decide whether it has jurisdiction to make parental responsibility orders. When the matter was before me on 2 December Mr Potkonyak said that as he wanted to go to the Supreme Court he would be "quite happy" if I dismissed the application that day. I declined to dismiss the application and I said that I proposed to list the mother's application for a hearing in January 2012 after giving the mother the opportunity to file written submissions. I stated again on 16 December 2011 that I proposed to list the matter for hearing on January 2012. He asked me on that day to dismiss the mother's application "rather than waste more time."

Principles relevant to an application for costs under s 88 of the Care Act

44 Section 88 of the Care Act provides as follows:

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

45 As to the meaning of "exceptional circumstances" (in rule 31.18 of the UCP Rules), in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell J said the following:

(1) Exceptional circumstances are out of the ordinary course or unusual or special or uncommon. They need not be unique or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered (R v Kelly (Edward) [2000] 1 QB 198).

(2) Exceptional circumstances can exist, not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors (R v Buckland [2000] 1 WLR 1262).

(3) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional (Ho v Professional Services Review Committee No. 295 [2007] FCA 288).

(4) In deciding whether exceptional circumstances are exceptional within the meaning of a particular statutory provision one must keep in mind the rationale of that particular statutory provision (R v Buckland).

(5) Beyond these general guidelines whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case (Awa v Independent News Auckland [1996] 2 NZLR 184).

46 In SP v Department of Community Services (DoCS) [2006] NSWDC 168 Rein DCJ (as his Honour then was) after referring to a number of cases said that some guidance can be gained from them as to the meaning of "exceptional circumstances" for the purposes of s 88. His Honour identified the following types of matters which would, or at least arguably might, fall within the description of exceptional circumstances for the purposes of s 88:

(i) Deliberate misleading of the court or opponents;

(ii) Other conduct or wrongful conduct;

(iii) Contumelious disregard of orders of the court or the principles set out in s 93 of the Care Act ("General nature of proceedings");

(iv) The raising of baseless allegations for which the party had no reasonable belief as to their existence;

(v) The raising of false issues that bear no relation to the facts or are contrary to clearly established case law;

(vi) Maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions;

(vii) Gross negligence in the conduct of a case at least where that has led to an extensive waste of the court's time and that of other parties, or

(viii) Where proceedings involve a blatant abuse of process and/or are both mischievous and misconceived.

47 His Honour said that while the categories of conduct are not closed, "there is a theme or flavour about these categories that I have already outlined as falling within the ambit, in my view, of s 88." In Director General of the Department of Human Services and Ellis-Simmons [2011] CLN 4 I said that the "theme or flavour" of the categories of exceptional circumstances referred to by Rein DCJ in SP v DoCS:

"clearly relates to the conduct of the parties and requires either deliberate improper or wrongful conduct (verging on abuse of process) or gross negligence or incompetence."

48 On any view, the fact that Mr Potkonyak invited the court to dismiss the mother's application and declined the opportunity to put any argument to the court that the application should not be dismissed, must constitute exceptional circumstances for the purposes of s 88.

49 Further, and very regrettably, I have also formed the view that exceptional circumstances exist because Mr Potkonyak's overall conduct of the matter in the Children's Court was at the very least grossly incompetent. Although the mother's case (as put by Mr Potkonyak) appeared to change each time the matter came before the court, ultimately, the only case put by Mr Potkonyak on behalf of the mother was that the remaining order should be rescinded not because of the considerations in s 90 of the Care Act but because, by operation of the Commonwealth Powers Act, the Children's Court had no jurisdiction to make the order.

50 A competent legal practitioner would be aware that such a jurisdictional argument could not be raised, let alone succeed, in the Children's Court but would have to be made in the Supreme Court by way of an application for prerogative relief. As the transcript for 16 December 2011 and Mr Potkonyak's written submissions of 15 December 2011 disclose, Mr Potkonyak ultimately abandoned seeking to establish any "significant change in a relevant circumstance" which is the threshold consideration for leave under s 90 (1). His argument, simply put, was that the court should rescind the remaining order (without regard to the relevant considerations in s 90) on the sole basis that the Children's Court had no jurisdiction to make the order. Such a case had no prospect of success in the Children's Court and a competent legal practitioner would have been aware of that.

51 It also appears that during the course of the current proceedings in the Children's Court, Mr Potkonyak was acting under the misapprehension that the Supreme Court would not grant relief to the mother unless she first brought a s 90 application in the Children's Court seeking to rescind the remaining order on the jurisdictional ground. Whilst it is correct that the Supreme Court retains a discretion to refuse to grant relief (both in its supervisory and parens patriae jurisdictions) where other statutory avenues of relief or review are available to an applicant, it should have been clear to Mr Potkonyak that the only avenue of relief and review available to the mother (on the jurisdictional argument) was in the Supreme Court and not in the Children's Court.

52 I am satisfied, therefore, that exceptional circumstances exist warranting the making of an order for costs in favour of the father. Ms Renshall submits that the order should be made against Mr Potkonyak personally.

53 The questions then arises as to whether s 88 extends to provide the Children's Court with power to make a costs order against a non-party such as a legal representative for a party. Historically, courts which possessed inherent jurisdiction, had power, exercised summarily, to order a solicitor to pay the costs of legal proceedings. The summary jurisdiction to order a solicitor to pay costs was an aspect of a superior court's disciplinary jurisdiction. It was based on the court's right and duty to supervise the conduct of solicitors: Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153 per McColl JA at [84] and [85]. In Lemoto, McColl JA said at [88] that the District Court, absent legislation, could not exercise a power to order solicitors to pay the costs of proceedings. Her Honour referred to Knaggs v JA Westaway & Sons Pty Ltd and Others (1996) 40 NSWLR 476 at 485. That same statement of principle would also apply to the Local Court and the Children's Court. In Knaggs the Court of Appeal was considering a statutory provision (s 148E of the District Court Act 1973 (now repealed)) that gave power to the District Court to make such an order. Similarly, the Local Court has a power under s 69(1) of the Local Court Act 2007 to award costs in application proceedings "at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings." However, s 88 of the Care Act does not provide the Children's Court with a specific power to make a costs order against a non-party. (I note that s 99 of the Civil Procedure Act 2005 (CPA) does not apply to care proceedings in the Children's Court: see s 4 (1) of the CPA and Schedule 1 to the CPA and that s 348 of the Legal Profession Act 2004 which allows for a costs order to be made against a law practice only applies to proceedings on a claim for damages and so does not apply to care proceedings).

54 For the above reasons I have concluded that s 88 of the Care Act is to be read as providing the court with the power to award costs only against a party to the proceedings and not against a non-party such as a legal representative.

55 Accordingly, I order that the mother pay the father's costs of the application.

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Decision last updated: 12 June 2012