A v Secretary, Department of Communities and Justice (No. 5)

These reasons for judgment relate to two notices of motion filed on 19 June 2020 by the defendants seeking summary dismissal of the plaintiffs’ Summons filed on 25 March 2020 pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 13.4.

These proceedings concern the plaintiffs and their daughter, who was born on 21 July 2017. In separate but related proceedings before Lindsay J, the plaintiffs were referred to by the pseudonyms “A” (for the first plaintiff in this proceeding) and “B” (for the second plaintiff in this proceeding) and their daughter with whom this proceeding is concerned was referred to by the pseudonym “D”. The half-sister of D was referred to by the pseudonym “C”. Pseudonyms are necessary in this proceeding to avoid disclosing (directly or indirectly) the identity of D, contrary to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). In order to avoid confusion, I will adopt the same pseudonyms as those used by Lindsay J in those related proceedings: A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872. I will also adopt a case name that conforms with the model adopted by his Honour, with the designation as judgment “No. 5”.

D was born on 21 July 2017. She is presently under the parental responsibility of the Minister for Families, Communities and Disability Services (the Minister) until she attains the age of 18 years under orders made by the Children’s Court on 23 September 2019 pursuant to s 79 of the Care Act. Those orders were confirmed by this Court on appeal under s 91 of the Care Act on 20 December 2019: A v Secretary, Department of Communities and Justice (No. 4) (supra).

At the time of the hearing of the motions on 7 September 2020, D was living in foster care accommodation with her long term carer arranged by the Secretary, Department of Communities and Justice, who is the first defendant in this proceeding (the Secretary and the Department respectively).

The first plaintiff, A, is the birth mother of D, and the second plaintiff, known by the pseudonym B, is the birth father of D. It is convenient to refer to them collectively as the plaintiffs, except where it is necessary to distinguish between them.

In these reasons, it will also be necessary to make reference to C, born on 31 October 2006, who is the natural child of A from a previous marriage. Along with her half-sister D, C was removed from the plaintiffs’ care by the Secretary on 15 September 2017. She presently lives in New Zealand with her father, who has been allocated sole parental responsibility for her to the exclusion of A by order of the Children’s Court on 23 September 2019 pursuant to s 79 of the Care Act. Those orders were also confirmed by this Court on appeal on 20 December 2019.

By their Summons, the plaintiffs seek two separate categories of relief. The first category seeks the following orders in relation to D:

The second category of relief seeks an order that, upon the award of the relief sought in the first category of relief, the proceeding be transferred to the Common Law Division “where it will continue as a representative action pursuant to Part 10 of the Civil Procedure Act 2005.” The proposed relief sought in such representative proceedings was set out at page 49 of Annexure “A” to A’s affidavit sworn on 23 March 2020. It is not necessary to refer to this document. The plaintiffs’ no longer press for the second category of relief.

The plaintiffs attempted to file a proposed amended summons on 18 May 2020, but it was rejected by the Registry for the plaintiffs’ failure to obtain prior leave. At hearing of the motions, the plaintiffs informally sought leave to file the proposed amended summons and confirmed that it sets out the relief that they wish to seek if the proceeding is not summarily dismissed. In the circumstances, I decided to hear the motions for summary dismissal on the basis that the plaintiffs seek the relief in the proposed amended summons on the grounds set out therein. It is therefore convenient to set out the relief sought in full:

Annexed to the proposed amended summons is a document styled “Grounds for the Relief Sought”:

I note that the proposed amended summons names the Minister as the first defendant and the Secretary as the second defendant. The Minister is not named as a defendant in the Summons. The proposed amended summons also names D as the third defendant, whereas the Summons incorrectly names D’s independent legal representative “Marina Voncina trading as Legal Aid of NSW” as the third defendant.

Notwithstanding these anamolies in the manner in which the defendants are named in the Summons, Mr Anderson of counsel prepared written submissions described as being made on behalf of the Minister and the Secretary and announced his appearance for the first and second defendants (referring to the Minister and the Secretary) at the hearing of the motions. Similarly, Ms Voncina, solicitor, announced her appearance for the third defendant, D, in her capacity as D’s independent legal representative.

D, and the Minister as the person with parental responsibility for D, are necessary parties to the proceeding. For this reason, and consistently with the manner in which the hearing was conducted as if the parties to the proceeding were the parties named in the proposed amended summons, it is appropriate that orders now be made under UCPR rr 6.24 and 6.29 removing Ms Voncina and Legal Aid NSW as the second defendant, joining the Minister as the second defendant, and joining D as the third defendant.

The defendants contend that the claims for relief contained in the Summons filed on 25 March 2020, in addition to the claims for relief contained in the proposed amended summons, are an abuse of process and should therefore be summarily dismissed pursuant to UCPR, r 13.4.

The defendants relied upon the affidavit of Shaima Lababidi affirmed on 19 June 2020. Ms Lababidi is the caseworker in the Department with responsibility for D.

In response, the plaintiffs relied upon three affidavits sworn by A on 23 March, 29 June and 10 August 2020.

The present proceeding has been commenced following a long history of proceedings in the Children’s Court and appeals to this Court concerning C and D.

The following account of the background to this proceeding and the summary dismissal applications is drawn from:

As noted above, both D and C were removed from the plaintiffs’ care on 15 September 2017 following the Department receiving a Risk of Significant Harm (ROSH) report which reported that that C had disclosed to a school counsellor a pattern of sexual abuse experienced by C at the hands of B dating back to mid-2016.

On 20 September 2017, the Secretary filed an application initiating care proceedings in the Children’s Court at Parramatta in relation to D and C pursuant to s 61 of the Care Act. The Secretary sought care orders for the children on the grounds that each child had been, or was likely to be, physically or sexually abused or ill-treated. At the time of this application, C was nearly 11 years old and D was eight weeks old.

On 22 September 2017, an interim order was made by the Children’s Court allocating parental responsibility to the Minister for both C and D until further order.

On 12 December 2017, Blewitt CM made findings, with the consent but without admissions of the parties, that both D and C were children in need of care and protection pursuant to s 72 of the Care Act. (The question whether a child is in need of care and protection is referred to as the “jurisdictional issue” or “establishment issue”.)

On 30 April 2018, the plaintiffs filed an application in the Children’s Court for an order that Blewitt CM’s findings that the children were in need of care and protection be re-opened and that the establishment issue be determined on its merits. On 23 August 2018, after an interim hearing on 9 July 2018, Crompton CM considered that it was appropriate to revisit the question whether D and C were children in need of care and protection, having regard to evidence adduced at the hearing before his Honour which had not been available to the Court at the hearing on 12 December 2017. His Honour, after considering all of the evidence, reaffirmed the findings that the children were in need of care and protection. His Honour said:

His Honour made the following orders:

On 2 October 2018, before the final hearing of the Children’s Court proceeding, the plaintiffs filed a summons in this Court in relation to the findings and orders made by both Blewitt CM and Crompton CM that the children were in need of care and protection. The summons sought a declaration that those findings were invalid and an order in the nature of prohibition restraining the Children’s Court from conducting a final hearing until the issue of whether the children were in need of care or protection was determined according to law. The summons also invoked the parens patriae jurisdiction of the Court seeking orders, inter alia, that D be restored to A’s care (albeit under the supervision of the Minister until final determination of the Children’s Court proceedings). The grounds on which the plaintiffs sought orders restoring D to the care of A were set out in that summons as follows:

The summons was set down for hearing on 1 February 2019. On 5 February 2019, Schmidt J handed down judgment dismissing the summons (A v Secretary, Family and Community Service (No 2) (supra)).

Schmidt J considered the various grounds on which it was alleged by the plaintiffs that Blewitt CM and Crompton CM had erred in finding that the children were in need of care or protection. Her Honour determined that none of those errors were made out. In respect of the plaintiffs’ claim for relief under the parens patriate jurisdiction, her Honour said (at [96]–[101]):

Final hearing of the Children’s Court proceedings was then heard before the President of the Children’s Court, Johnstone DCJ, over four days on 20, 21 and 22 May and 23 September 2019. The transcript of that hearing is not evidence before me. However, a review of the ex tempore reasons given by his Honour on 23 September 2019 show that the establishment issue of whether D and C were in need of care and protection was re-considered by his Honour on the plaintiffs’ application during the course of the hearing.

His Honour said (at [16]–[18]):

In this proceeding, the plaintiffs dispute that the President re-opened and determined the establishment issue. The plaintiffs contend that his Honour considered their application to re-open the establishment hearing, but declined to do so. That contention must be rejected, in light of his Honour’s judgment at [16]–[18] referred to above. In any event, as will become apparent below, the establishment issue was considered by Lindsay J on the plaintiffs’ appeal from the President’s orders, which was conducted by way of a hearing de novo in accordance with s 91(2) of the Care Act.

In addressing the merits of the substantive hearing, his Honour concluded (at [70]–[71]) that there was no realistic possibility of restoration of the children to either A or B, but that there was a realistic possibility of restoring C to her birth father. In reaching this conclusion, his Honour said (at [65]–[66]):

His Honour made the following orders that day in relation to C:

In relation to D, his Honour made the following orders:

The following day, on 24 September 2019, the plaintiffs commenced an appeal pursuant to s 91 of the Care Act by summons filed in this Court (proceeding 19/298471). As the orders of 23 September 2019 were made by the Presidential Children’s Court, an appeal was required to be instituted and heard in this Court: see Children’s Court Act 1987 (NSW), s 22A; Children’s Court Regulation 2019 (NSW), reg 5.

That summons was amended on 28 October 2019 pursuant to leave granted by Lindsay J.

The prayers for relief in that amended summons relevantly sought:

The appeal was heard before Lindsay J on 10, 11, 12 and 13 December 2019. The appeal was conducted by way of a hearing de novo before his Honour in accordance with s 91(2) of the Care Act. On 20 December 2019 his Honour dismissed the appeal and confirmed the orders made by the Children’s Court on 23 September 2019 (A v Secretary, Department of Communities and Justice (No 4) (supra)).

In his reasons for judgment, his Honour noted that the plaintiffs invited the Court to determine the “establishment phase” and the “placement” phase of the relief sought in the amended summons in two separate, procedural stages. His Honour declined to adopt that course and proceeded to hear and determine both phases in the one appeal (see [100]).

His Honour noted that the primary focus of the appeal was on the operation of ss 72 and 73 of the Care Act (see [101]). The case advanced by the Secretary on appeal (with the support of the legal representatives of both D and C) was that the children were in need of care and protection by virtue of s 71(1)(c) which, in terms, provides that a care order may be made in relation to a child or young person if the Children’s Court is satisfied that the child or young person is in need of care and protection because the child or young person has been, or is likely to be, physically or sexually abused or ill-treated.

Following a careful review of the evidence before him, his Honour made findings (at [115]–[117]):

His Honour was therefore satisfied on the basis of these findings that the establishment issue was proved, not only in respect of C but also D. His Honour said (at [120]–[121]):

His Honour also held (at [123]–[124]), on the basis of his findings above, that the children should not be restored to the care of the plaintiffs, jointly or severally, and that there is no realistic possibility of restoration of the children to them, jointly or severally, within a reasonable time, if ever, but that there was a realistic possibility of the restoration of C to her birth father.

At the hearing of the motions for summary dismissal, A informed the Court that the plaintiffs had attempted to file an application in this Court for judicial review of Lindsay J’s decision, but the Registry had declined to accept the filing and had informed the plaintiffs that “there isn’t a Judicial Review for a Supreme Court Judge”. The defendants informed the Court that they had not been aware of that development.

On 3 March 2020, the plaintiffs filed an application in the Children’s Court pursuant to s 90 of the Care Act to vary or rescind the care order made in relation to D on 23 September 2019 (and confirmed by this Court on 20 December 2019). The application sought:

The grounds for the orders sought above were said to be that the findings made by both the Children’s Court and the Supreme Court did not “warrant the keeping of [D] in out of home care – unnecessarily – for an unknown number of years since it is contrary to the principles of intervention as mandated by ss 9 and 36 of the Care Act.” The plaintiffs relied on the finding made by Johnstone DCJ at [65] of his reasons delivered on 23 September 2019 and the finding made by Lindsay J at [120] of his reasons delivered on 20 December 2020 that D would be at risk of sexual harm “as she grows older” (that is, not immediately).

On 20 March 2020, the s 90 application was heard by Hogg CM. His Honour refused leave to the plaintiffs to make their application. In an ex tempore judgment delivered at the conclusion of the hearing, his Honour directed himself to the requirements of s 90, recited the procedural history of the matter, and considered the findings made by Lindsay J in his judgment delivered on 20 December 2019. His Honour said:

On 25 March 2020, the plaintiffs filed the Summons in this Court which commenced the present proceeding. The Summons was initially made returnable on 27 April 2020. Prior to that date, however, the plaintiffs filed a notice of motion on 13 April 2020 which sought urgent relief in the Equity Duty List. Prayer 2 of the relief sought in that notice of motion was a restraint on the Secretary from removing D from her then foster carer until further order of the Court.

The notice of motion and the proceeding was then listed for directions before Lindsay J on 14 April 2020. The transcript of that occasion reveals that:

His Honour made orders and directions at the conclusion of this hearing, including:

When the matter came back before Lindsay J for further directions on 17 April 2020:

The orders and directions made by his Honour that day included the following:

On 19 April 2020, D was transitioned to live with her long-term, permanent foster carer.

The plaintiffs did not commence appeal proceedings in the District Court within the three week period contemplated during the directions hearing of 17 April 2020. No such appeal proceedings had been commenced at the time of the hearing of the summary dismissal motions on 7 September 2020.

As I have referred to earlier in these reasons, the plaintiffs attempted to file an amended summons in the Registry without leave of the Court on 18 May 2020. The Registry refused to accept the filing of that document.

Notices of motion for summary dismissal were filed by the defendants on 19 June 2020 and listed for hearing before me on 7 August 2020.

The plaintiffs filed a notice of motion on 4 August 2020 seeking to vacate the hearing date of the summary dismissal motion on the basis that:

Having regard to these considerations and the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), I vacated the 7 August 2020 hearing date and the motions for summary dismissal were subsequently re-listed for the hearing before me on 17 September 2020.

In her affidavit affirmed on 19 June 2020, Ms Lababidi deposed that, since being moved to her permanent foster carer on 19 April 2020, D has been in good health and is reported to be meeting appropriate development milestones.

D has monthly contact visits with the plaintiffs. During the COVID-19 pandemic, those contact visits were temporarily suspended at the request of the plaintiffs due to health concerns. According to Ms Lababidi, face-to-face visits were re-commenced in June 2020 and occurred weekly for a period of 2 hours up until 19 July 2020 in order to make up for the missed visits during the pandemic.

However, since 19 July 2020, face-to-face visits between D and the plaintiffs were held on a monthly basis for a period of 2 hours. Ms Lababidi deposed that D has had monthly contact with C via FaceTime but has not had any face-to-face contact with her since C moved to New Zealand to live with her birth father, in December 2019.

The defendants submitted that this proceeding is an abuse of process because:

In relation to the submission mentioned immediately above, the plaintiffs adduced evidence to the effect that, to their observation, D is suffering emotional distress as a result of the care arrangements that have led to her being removed from the plaintiffs’ care, being placed in temporary foster care before being transitioned to long-term foster care and being separated from C as a result of C being placed in the care of her birth father in New Zealand. I refer to that evidence in more detail below.

The defendants submitted that emotional distress of this kind is a known consequence of care orders that is taken into account by the Children’s Court when making such orders in the exercise of its specialist statutory jurisdiction.

Specifically, the defendants refer to ss 80 to 83 of the Care Act.

Section 80 provides that the Children’s Court must not make a final care order without considering a care plan for the child prepared by the Secretary.

Section 82 provides:

As recorded in the reasons for judgment of Lindsay J (A v Secretary, Department of Communities and Justice (No. 4) (supra) at [35]), the Children’s Court did make orders under s 82 in relation to D. Those orders require the Secretary to prepare reports four months and eleven months after the Children’s Court orders made on 23 September 2019, concerning:

At the time of the hearing of defendants’ summary dismissal motions, the second of those reports had recently been prepared. The defendants acknowledged that it would open to the plaintiffs to make a further application to the Children’s Court under s 90 of the Care Act for leave to apply to rescind or vary the care orders relating to D on any grounds arising from that s 82 report. This submission did not accept that the s 82 report reveals a basis for an application under s 90, but it is open to the plaintiffs to form their own view about that matter. Indeed, it is open to the plaintiffs to make such an application at any time. Section 90(2) of the Care Act provides that the Children’s Court may grant leave if it appears that there has been a significant change any relevant circumstances since the care order was made or last varied.

As noted above, A relied on three affidavits in opposition to the summary dismissal motions. Those affidavits contain a mixture of submissions and facts but no objection was taken by the defendants to the admission of the content of the affidavits for the purposes of determining the motions.

The content of those affidavits may be summarised as follows:

In their written submissions dated 2 September 2020 and 7 September 2020, the plaintiffs submitted that:

The plaintiffs’ written submissions contain further allegations that counsel for the Secretary and the Minister and D’s independent legal representative have misled the Court, and various other criticisms of their conduct. All of those allegations and criticism are predicated upon the plaintiffs’ interpretation of the Care Act and the plaintiffs’ subjective views about the scope of the role of the independent legal representative. It is neither necessary nor appropriate to address those allegations and criticisms in the context of determining the applications for summary dismissal. However, I note again that a submission made to a court by counsel or a solicitor is not misleading merely because it propounds an interpretation of the law, or advocates for a particular application of the law, with which the plaintiffs vehemently disagree.

In oral submissions made on behalf of both plaintiffs at the hearing on 7 September 2020, A submitted that:

Rule 13.4 of the Uniform Civil Procedure Rules provides:

The Court should exercise caution before summarily dismissing a proceeding without a hearing on the merits. That is particularly so in a case such as the present where the plaintiffs do not have legal representation and the proceeding concerns an application to the Court in its parens patriae jurisdiction concerning the parental responsibility and care arrangements for the plaintiffs’ child: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 at [47]–[53].

The Court’s task in determining the summary dismissal application in this case is not to decide what is in the best interests of the child D. The Court’s task is to determine whether the proceeding is an abuse of process.

The onus of satisfying the Court that the proceeding is an abuse of process is a heavy one, which rests on the defendants as the parties alleging abuse of process: at GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [203] and the authorities there cited.

Having carefully considered the history of proceedings relating to D, the proposed amended summons and the parties’ submissions, I have concluded that the proceeding is an abuse of process and should be summarily dismissed pursuant to UCPR r 13.4.

In substance, the proceeding seeks to re-litigate the same issues that have been determined by Lindsay J in his Honour’s judgment and orders made on 20 December 2019.

The plaintiffs dispute this, emphasising that they accept the finding of Lindsay J that D will be at risk of harm as she grows older if she is returned to the plaintiffs’ care.

The plaintiffs characterise this finding as a finding that D is not at immediate risk of harm in the plaintiffs’ care.

In my view, that characterisation is highly questionable, when the finding is considered in the context of all of other findings made by his Honour, including the findings (at [115]–[121] of A v Secretary, Department of Communities and Justice (No. 4) (supra)) that:

In any event, the finding that D will be at risk of sexual abuse as she grows older if she is returned to the plaintiffs’ care was one finding of fact that supported Lindsay J’s finding referred to immediately above that D was a child in need of care of protection (the protection finding). It is the protection finding, together with his Honour’s finding (at [122]–[123] of A v Secretary, Department of Communities and Justice (No. 4) (supra)) that there was no realistic possibility of C and D being restored to the care of the plaintiffs within a reasonable time (if ever), that resulted in his Honour confirming the orders made by the Children’s Court and dismissing the plaintiffs’ appeal under s 91 of the Care Act (see A v Secretary, Department of Communities and Justice (No. 4) (supra) at [125]–[126]).

In this proceeding, the plaintiffs do seek to attack the protection finding and orders made by Lindsay J in relation to D. That is plain from the proposed amended summons and the plaintiffs’ written submissions that I have summarised above.

The declaration sought in the proposed amended summons that D is a child in exceptional circumstances warranting the intervention of the Court because (inter alia) she is being held in foster care despite not having being found to be in need of care and protection pursuant to s 72 of the Care Act, is directly contrary to the protection finding made by Lindsay J.

The orders sought in the proposed amended summons are directly contrary to Lindsay J’s orders confirming the orders made by the Children’s Court on 23 September 2019. The orders sought by the plaintiffs in the proposed amended summons, if made, would have the effect of overriding the orders made by Lindsay J.

The parens patriae jurisdiction of the Court is an exceptional jurisdiction: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [201] and the authorities there cited. Taking the plaintiffs’ evidence concerning D’s emotional state at its highest, the circumstances relied on by the plaintiffs as warranting the exercise of the Court’s parens patriae jurisdiction are not new circumstances. As the defendants submitted, the emotional impact on D of being removed from her parents and placed into care, and of any changes to those care arrangements, are matters that are taken into account by the Children’s Court in the exercise of its specialist statutory jurisdiction concerning the care of children. Under the orders made by the Children’s Court in relation to D, and confirmed by Lindsay J, the Children’s Court is receiving reports concerning D’s progress in her foster care placement, her health and wellbeing. The Children’s Court has power under s 82 of the Care Act to review the implementation of the care plan for D. The plaintiffs also receive a copy of the reports provided to the Children’s Court. It is open to the plaintiffs to seek leave to make further applications under s 90 of the Care Act to vary or rescind the care orders made in relation to D on the basis of any significant change in relevant circumstances since the care order was made, irrespective of whether any such change relates to matters reported to the Children’s Court under s 82.

The commencement of a proceeding in this Court seeking to re-litigate issues already determined previously by this Court is an abuse of process. It is vexatious to the defendants to be required to address the same issues repeatedly. It is also contrary to the public interest in the administration of justice because it gives rise to a potential risk of inconsistent decisions by this Court on the same issues, which brings the administration of justice into disrepute: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [89] (Gummow A-CJ, Hayne, Crennan and Bell JJ); GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [222]–[223].

It does not follow that the plaintiffs lacked the means to challenge the judgment and orders of Lindsay J.

It would have been open for the plaintiffs to have sought leave to appeal from Lindsay J’s judgment and orders of 20 December 2019. His Honour’s decision was a “judgment or order of the Court in a Division” (s 101(1)(a) of the Supreme Court Act 1970 (NSW)). It was a final judgment or order in the proceeding, but leave would have been required because the subject matter at issue in the proceeding (that is, the welfare of the affected child or children) was incapable of being valued, thereby attracting the operation of s 101(2)(r) of the Supreme Court Act: see CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 at [28]–[29].

If the orders made by the Children’s Court had been made by a judicial officer other than the President of that Court, the plaintiffs’ appeal under s 91 of the Care Act would have been heard by the District Court rather than by this Court. There would have been no appeal from the District Court exercising its statutory functions under s 91 to the Court of Appeal because a statutory appeal to the District Court is not an “action” from which an appeal to the Court of Appeal lies pursuant to s 127 of the District Court Act 1973 (NSW): see Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [8], citing Druett v Director-General of Community Services [2001] NSWCA 126 at [11]–[13]; X v Director-General of the Department of Community Services [2001] NSWCA 413 at [24]. However, it would have been open to the plaintiffs to seek prerogative relief in respect of the District Court decision by invoking the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. Any such application would have been assigned to the Court of Appeal pursuant to s 48 of the Supreme Court Act. The plaintiffs would have had to establish an error of law on the face of the record or jurisdictional error: Re Felicity; FM v Secretary, Department of Family and Community Services (No. 3) (supra) at [8]. I mention this only because it may be relevant to the course initially attempted by the plaintiffs of seeking to file what they described as an application for judicial review of Lindsay J’s decision.

For all of the above reasons, the proceeding should be summarily dismissed pursuant to UCPR r 13.4. For the same reasons, I would have refused leave to file the proposed amended summons. However, it is not necessary to make a formal order refusing leave as the proceeding is to be dismissed.

The defendants submitted that the plaintiffs should pay their costs of the notices of motion and the proceedings. However, in circumstances where the plaintiffs do not have legal representation and the course that they took in commencing this proceeding may have been affected by a misunderstanding about the appropriate avenue to challenge orders made by this Court (as opposed to by the District Court) on appeal from a decision of the Children’s Court, I consider that the appropriate order is that each party pay their own costs of the notice of motion and the proceedings.

I make the following orders: