Re Anita (No 3)

[2016] NSWSC 1959

Supreme Court

New South Wales

Medium Neutral Citation:	Re Anita (No 3) [2016] NSWSC 1959
Hearing dates:	26 July 2016
Date of orders:	02 August 2016
Decision date:	02 August 2016
Jurisdiction:	Equity
Before:	Robb J
Decision:	No orders made, other than to adjourn the proceedings
Catchwords:	FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – orders made for control and secure accommodation of young person when 13 years of age – young person has attained 18 years – order for parental responsibility in favour of Minister, Department of Family and Community Services ceased when young person became 18 – guardianship order made by NSW Civil & Administrative Tribunal in favour of Public Guardian – continuing operation of parens patriae jurisdiction – principles applicable – supervision by court of transition to exercise of guardianship powers by Public Guardian
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardianship Act 2009 (NSW)
Cases Cited:	Secretary, Department Family and Community Services; Re “Lee” [2015] NSWSC 1276 Secretary, Department of Family and Community Services: Re “Lee” [2016] NSWSC 138 Re AAA; Report on Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805 Re Application of Local Health District; Patient Fay [2016] NSWSC 624
Category:	Procedural and other rulings
Parties:	Secretary, Department of Family and Community Services (plaintiff) The Public Guardian (first defendant) Anita’s mother (second defendant)
Representation:	Counsel: M England (plaintiff) Solicitors: NSW Crown Solicitor (plaintiff) C Phang (first defendant) L Wells (second defendant) K Renshall (independent legal representative for Anita)
File Number(s):	2013/255452
Publication restriction:	None

Judgment

1. This case raises a question about the nature and exercise of the court’s parens patriae jurisdiction.

2. It arises in the context of the transition of responsibility for the young person known for the purposes of these proceedings as “Anita” from the Minister, Department of Family and Community Services, to the Public Guardian.

3. Anita is now an adult, as she attained the age of 18 years on 28 March 2016.

4. For many years, Anita has suffered from significant disabilities. She has a developmental disability, with extremely limited insight into her chronic self-harming and poor impulse control. She has also been diagnosed with chronic complex post-traumatic stress disorder, and disruptive mood dysregulation disorder.

5. As a consequence of her disabilities, Anita’s conduct has involved many forms of antisocial and inappropriate behaviour; but most significantly, she has a propensity to engage in frequent and unpredictable acts of self-harm, and behaviour that puts her at substantial physical risk, and on occasions, mortal risk.

6. In around December 2012, the Children’s Court of New South Wales made an interim order giving the Minister parental responsibility for Anita. The Children’s Court then made a final order on 12 August 2013, allocating parental responsibility for Anita to the Minister until she attained the age of 18 years.

7. Anita was placed into various forms of care, but those responsible for her care were unable to control her escalating forms of self-harm and risk-taking behaviour.

8. On 22 August 2013, on the application of the Minister, and the Director-General (now Secretary) of the Department, I made orders for the secure accommodation of Anita, and consequential orders. Those orders authorised the Secretary to detain Anita at secure premises and to use reasonable force, if necessary, to so detain her. The Secretary was authorised, using whatever assistance the Secretary deemed appropriate, to take Anita to the premises, and the staff employed by the Secretary were authorised to use reasonable force if necessary, to restrain Anita in order to prevent her from injuring herself or others, and to administer medication in accordance with medical advice. Further, the Australian Federal Police and the New South Wales Police were authorised and directed to locate and recover Anita and deliver her to the Minister.

9. The orders were made on the basis of evidence that justified a real fear that Anita was at imminent risk of death, as a result of her self-harming and risk-taking behaviour; primarily as a result of her attempts to strangle herself with electrical cords, shoelaces and other ligatures around her throat; and her propensity to run across busy roads without regard to the movement of the traffic and her own safety.

10. The matter has regularly been returned to the court for report by the Secretary and for supervision by the court, and on each occasion until recently, the court has made orders extending the original orders.

11. The orders have involved the Secretary providing secure accommodation for Anita at Sherwood House, which is a six bedroom house, set up as a secure therapeutic residential facility. The staffing includes carers and security staff, with an on-site manager. Sherwood House engages a specialist behavioural support agency, which develops individual behaviour management plans for each resident, and those plans are adjusted as the needs of each resident changes over time. The plans provide for residents to move through phases with the intent that in due course, they will attain a level of insight, self-control, and behavioural modification that would permit them to live in the community free of the strict constraints provided at Sherwood House.

12. Anita’s propensity to engage in self-harm and other antisocial and inappropriate behaviour has unfortunately continued from time to time. Anita has been hospitalised on many occasions. Anita’s behaviour has frequently required that she be placed under 24-hour line-of-sight supervision for her own protection.

13. Notwithstanding the sterling efforts of all concerned in maintaining Anita’s welfare, the hope that she could be cured of the behavioural patterns that have put her at such risk has not been realised.

14. In response to the impending attainment by Anita of her 18th year, the Secretary explored the institutional arrangements that might be able to be put into effect to ensure Anita’s long-term care and security. That involved consultations between officers within the Department of Family and Community Services (FACS) who were formerly responsible for the care of Anita and officers of Ageing, Disability and Home Care (ADHC), also within FACS.

15. Briefly, arrangements were made for supported accommodation for Anita in a facility in the suburb of Ruse, near Campbelltown, which has been reconstructed in a number of ways to reduce the opportunity for Anita to find means of hurting herself. The supported accommodation is staffed by employees of ADHC who have special training to provide care and support for persons with Anita’s disabilities and behavioural problems.

16. A special funding package was arranged through The Disability Trust to fund the arrangements, including the supported accommodation, which were thought by expert officers of FACS to be necessary for the long-term protection of Anita.

17. On 15 March 2016, I made orders extending the control and secure accommodation orders, but only up until 28 March 2016, when they lapsed.

18. On 21 March 2016, the New South Wales Civil & Administrative Tribunal (NCAT) made a guardianship order in respect of Anita in favour of the Public Guardian. The order was made for a period of 12 months. It is a limited guardianship order giving the Public Guardian custody of Anita to the extent necessary to carry out functions which include the following:

5.   The guardian has the following function, effective from 21 March 2016:

a)   Advocacy

To advocate generally for [Anita]

6.   The guardian has the following functions, effective from 28 March 2016:

b)   Access

To decide what access [Anita] has to others and the conditions of access.

c)   Accommodation

To decide where [Anita] may reside.

The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: –

i)   take [Anita] to a place approved by the guardian;

ii)   keep her at that place; and

iii)   return her to that place should she leave it.

…

g)   Restrictive Practices

To make decisions about the following restrictive practices:

Access to sharps

Access to personal belongings

Access to the community

Use of PRN medication

h)   Services

To make decisions about the services to be provided to [Anita].   

19. The guardianship order it is subject to the following conditions:

7.   The conditions of this order are:

a)   In exercising this role the guardian shall take all reasonable steps to bring [Anita] to an understanding of the issues and to obtain and consider her views before making significant decisions.

b)   The guardian may only consent to the listed restrictive practices to address challenging behaviours within the context of the implementation of the Behaviour Intervention and Support Plan dated March 2016 (as reviewed)

20. Anita’s guardian is Principal Guardian Ruth Guthrie from the NSW Office of the Public Guardian, Western Region.

21. For some time before she reached the age of 18 years, while still living in the secure accommodation, Anita expressed the preference to return to live with her mother and sister, at their home outside Sydney. Anita’s mother shared that aspiration.

22. Anita moved to her supported accommodation placement in Ruse on 30 March 2016.

23. On 8 April 2016, Anita unilaterally left the supported accommodation and travelled to her mother’s home. Anita was returned to the supported accommodation on 11 April 2016. On 24 April 2016, Anita again left her placement and travelled to her mother’s home. From that time onwards, Anita has spent most of the time living at her mother’s home, or occasionally with her maternal grandparents.

24. While she was living in the supported accommodation, Anita attempted self-harm or 2, 3, 6, 11, 13, 14 and 24 April 2016. On 14 April 2016, after she attempted self-harm by tying shoelaces around her neck, Anita was admitted to the acute mental health unit for youth at Campbelltown Hospital. On 23 April 2016 Anita ingested hydrogen peroxide with water, and inserted a straw and a razor into her body.

25. Anita has remained dependent on representatives of ADHC travelling to her mother’s home to resupply Anita with the medicines that continue to be essential for the management and stabilisation of Anita’s psychological condition.

26. Initially, and for some weeks, Anita’s psychological state generated hope that the belief of Anita and her family that she would recover from her most threatening behaviours if she was able to return home would be realised.

27. Unfortunately, that hope has so far been unrealised, and Anita has again started to engage in serious acts of self-harm. It will be sufficient to record part of a discharge summary dated 22 July 2016 in relation to an involuntary admission to the mental health facility at the local hospital, on 13 July 2016:

… In recent weeks, her self-harming behaviours have escalated and she has required numerous investigations and procedures to remove foreign bodies she inserts into numerous orifices when distressed. Recently she has placed a razor blade in her vagina, inserted a plastic medicine cup into her rectum and pencils into her urethra and bladder.

28. The evidence shows that there have been consultations between officers of ADHC and the Public Guardian, and with Ms Guthrie herself, with a view to developing a satisfactory plan for Anita’s future, which includes reintroducing Anita to the supported accommodation at Ruse, together with a possible shared care arrangement between Anita’s maternal grandparents and Ruse, whereby the special funding package that has been arranged for Anita could be retained. The support package can only be accessed if Anita is not residing with her biological parents, which is consistent with the arrangements generally applied to young persons leaving care. The details of the arrangements suggested by ADHC are contained in an email from a manager of ADHC to Ms Guthrie dated 15 July 2016.

29. The latest word from the Public Guardian put before the court is a statement made by Ms Guthrie on 25 July 2016 in the following terms:

The Public Guardian has had meetings with the stakeholders regarding [Anita’s] accommodation. It is understood that there is still division from people involved in her care about whether she should return to the accommodation at Ruse or remain living with her parents with additional support or for a new option to be considered for supported accommodation [in the local area]. There have been a few incidents of self-harm recently as well as a stay in a Mental Health Unit [in the local area]. If she is to return to Ruse, the earliest date that this could happen is 01/08/2016 due to additional staff training required. The Public Guardian is awaiting updated behaviour intervention support plans, and any other information for consideration.

30. As the Minister’s parental responsibility for Anita had ceased, the Minister was removed as a party to the proceedings at the Minister’s request, by order made on 24 May 2016.

31. The Public Guardian and Anita’s mother were added as defendants to these proceedings on 15 June 2016.

32. On 26 July 2016, the remaining plaintiff in this matter, the Secretary, applied to the court for an order that the balance of the summons filed on 22 August 2013 be dismissed.

33. Counsel for the Secretary advised the court that the Secretary had made the application because the Minister’s parental responsibility for Anita had ended; the Secretary had taken all available steps to involve ADHC in the future care and welfare of Anita; a guardianship order had been made appointing the Public Guardian; and the Secretary had exhausted the Secretary’s capacity to ensure a proper transition of responsibility for Anita’s welfare from the Minister to the Public Guardian.

34. It is clear that the Secretary has not applied for the balance of the summons to be dismissed because the Secretary is satisfied that all proper and necessary steps have been taken to ensure an effective transition of responsibility.

35. If the court had made the orders sought, then the exercise of its power and responsibility under the parens patriae jurisdiction would have come to an end. The Minister’s role of protecting Anita by exercising parental responsibility over her has expired. The Public Guardian has not yet decided upon any complete or comprehensive plan for the exercise of its guardianship powers in respect of Anita.

36. Because of the manifest risk that Anita could cause herself serious, and perhaps irreparable, harm in the hiatus of apparent institutional responsibility for her care and well-being, I declined to make the order sought by the Secretary, and reserved consideration of the application.

37. The question at this stage is:

1. Does the inherent parens patriae jurisdiction of the court extend to empower the court to decline to make an order dismissing the Secretary’s summons on the application of the Secretary?

2. If so, in the context of statutory arrangements where orders have been made by a competent court or tribunal with the effect that an order placing parental responsibility for Anita in the Minister has been replaced by a guardianship order in favour of the Public Guardian, does the parens patriae jurisdiction extend to empowering, or requiring, the court to supervise the transitional arrangements to secure the most satisfactory and efficacious arrangements that are reasonably possible for the continuing care and well-being of Anita?

3. If the court has such a jurisdiction, how should it be exercised?

38. It is appropriate to make the following initial observations. First, this is a case where the court’s parens patriae jurisdiction has been engaged both by the fact of Anita’s minority, and also the behavioural consequences of her mental disabilities.

39. Secondly, this is a relatively extreme case where Anita’s safety has required, and continues to require, an exceptionally high level of professional supervision, care, and sometimes even restraint.

40. Thirdly, I am at this stage only concerned with the need for relatively short-term transitional arrangements to facilitate the effective transition of responsibility for Anita from the Minister to the Public Guardian. The issue is the extent of the court’s power, acting within the existing proceedings, to facilitate, or even require, cooperation between the Secretary and the Public Guardian, and the formulation by the Public Guardian of a plan, by the exercise of the statutory powers vested in the Public Guardian by the order made by NCAT, to achieve a satisfactory level of protection for Anita.

41. At this point I assume that, if the court retains the jurisdiction to take these steps, an outcome will be achieved in a relatively short amount of time, which will allow the court to decide that the need for the continuation of the exercise of its parens patriae jurisdiction has come to an end, so that it would be proper for the court to dismiss the Secretary’s summons, and leave the future guardianship of Anita in the hands of the Public Guardian. I leave aside for the present the possibility, which remains open, that circumstances may require the court to continue to exercise its parens patriae jurisdiction for a longer period than I presently contemplate.

42. It is necessary to review relevant authority to determine the nature and extent of the court’s powers in this context.

43. Recently, in Re Application of Local Health District; Patient Fay [2016] NSWSC 624, Sackar J described the court’s parens patriae jurisdiction in the following terms:

[21] It is appropriate that I observe that the parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Marion’s Case (1992) 175 CLR 218258–9 (Mason CJ, Dawson, Toohey and Gaudron JJ) 278–80 (Brennan J). The jurisdiction requires and obliges the Court to act in the manner of a wise, affectionate and careful parent for the welfare of the person: R v Gyngall (1893) 2 QB 232at 241 (Lord Esher MR); Marion’s Case at 280 (Brennan J).

[22] The jurisdiction’s focus is essentially protective in nature. In exercising the jurisdiction the Court’s concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq

[23] The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad. Whilst broad, it is generally to be exercised only in exceptional cases and with considerable caution. In the case of an adult, this caution is especially important because care should always be taken to ensure that there is no interference unlawfully in the free will of a capable individual.

44. More recently, Lindsay J, drawing on his great learning on the subject, has undertaken a comprehensive examination of the performance of the protective functions of the State in Re AAA; Report on Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805. His Honour described the purpose of his judgment in the following terms:

[1] This judgment explains procedures adopted by the Court as a means for protection of the welfare and interests of a young person suffering from a physical disability to such an extent that she is incapable of managing her own affairs in fact, and she is subject to orders for protection of her person and her property, as she transitions from minority, to adulthood, on attaining the age of majority, 18 years.

45. The case before his Honour differed from the present, in that the young person concerned had suffered personal injuries in a motor vehicle accident that caused her to be incapable of managing her own affairs. She was awarded compensation in the sum of approximately $3 million. Lindsay J had made protected estate management orders on 24 June 2014, when she was 16 years of age, under the NSW Trustee and Guardian Act 2009 (NSW). The young person was incapable of managing her affairs. She was apparently not prone to self-harm or other risky behaviour. The question was whether the court should continue the protected estate management orders after her imminent 18th birthday.

45. Nonetheless, his Honour’s review of the law, in its practical context, is of great assistance in the present case, and warrants being set out at some length. Given the length of the following extract, and the extent of the deletions that I have made, I should explain that I have omitted the commentary that is more relevant to the making of protected estate management orders, and also aspects of the important historical analysis undertaken by his Honour (may I be forgiven for the latter):

[17] The various orders made by the Court and NCAT, with the important incidental involvement of the NSW Trustee, demonstrate the integrated character of present procedures for performance of the protective functions of the State (historically, the Crown) through different arms of government.

[18] An appreciation of how, and why, the protective jurisdiction of the Court operates as it does (in conjunction with statutory tribunals and agencies of executive government) is assisted by an understanding of the character of the Court’s jurisdiction and the historical antecedents of that jurisdiction.

[19] The jurisdiction conferred upon the Court by the NSW Trustee and Guardian Act, and that conferred on NCAT by the Guardianship Act 1987, are modelled upon, or at least analogous to, the Court’s inherent jurisdiction. The jurisprudence of the Court, for its part, has been enriched by observance of, and engagement with, specialised decision-makers wrestling with the sometimes intractable, inter-disciplinary problems found, in search of principled, workable solutions, in the protective jurisdiction.

[20] The protective jurisdiction of the Court, both inherent and statutory, exists for the protection of an individual in need of protection because of an incapacity for self-management.

[21] Historically, the “inherent” protective jurisdiction of the Court (as it is routinely called) is grounded upon section 9 of the “New South Wales Act” of 1823, 4 Geo IV chapter 96 (Imp), and clause 18 of the Third Charter of Justice (Letters Patent of 13 October 1823 issued pursuant to the New South Wales Act), the operation of which has been preserved, inter alia, by: (a) the Australian Courts Act 1828 (Imp), 9 Geo IV chapter 83, which prescribed the date for reception of English law in New South Wales; and (b) section 22 of the Supreme Court Act 1970 NSW.

[22] Since the commencement of the Supreme Court Act 1970, section 23 of that Act (which provides that the Court has “all jurisdiction which may be necessary for the administration of justice in New South Wales”) has also been seen as a general source of “inherent” jurisdiction: Re Q (Young J, 29 May 1985, unreported), extracted in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [75]–[77]; Re C [2012] NSWSC 1097 at [64]–[65]; IR v AR [2015] NSWSC 1187 at [102]; Fountain v Alexander (1982) 150 CLR 615 at 633. Strictly, the section is an independent grant of power: Re W and L [2014] NSWSC 1106 at [79]–[82].

[23] There is a subtle, but potentially important shift in use of the word “inherent” here which recognises the existence of jurisdiction in the Court untrammelled by perceptions of historical constraints of 19th century English practice and procedure: Sutton v Warringah Shire Council (1985) 4 NSWLR 124at 131 G-132C.

[24] That this was an intended consequence of SCA section 23 can be inferred from the antecedents of the section, opaque as they are on the face of the Reports of the NSW Law Reform Commission and parliamentary debates leading to enactment of the section.

…

[27] The current “inherent” jurisdiction of the Court is thus informed by English legal history associated with establishment of the Court by reference to English institutions, and the formal reception of English law in NSW, in the 1820s; but it is not constrained by the procedural norms and jurisdictional demarcations that characterised the fragmented English court system of that time.

[28] For present purposes the “statutory” jurisdiction of the Court may be found in Chapter 4 (sections 38–100) of the NSW Trustee and Guardian Act. There is found, principally in section 41, a jurisdiction to make protected estate management orders which engage the administrative infrastructure through which the NSW Trustee, under the supervision of the Court, monitors management of all protected estates in NSW and, as the State’s manager of last resort, manages some of them.

[29] In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218at 258–259 the High Court of Australia grounded “parens patriae jurisdiction” (of the type exercised by this Court as “protective jurisdiction”) in the following extract from the judgment of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1at 20; 38 ER 236 at 243:

[The jurisdiction] belongs to the King [the Crown], as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.

…

[33] The protective jurisdiction of the Court extends to the making of orders for protection of “the person” (that is, the body) and “the estate” (that is, property) of the person in need of protection.

…

[37] An effective exercise of protective jurisdiction generally requires engagement of a system of administrative support, operating under the supervision of the Court, in management of the affairs of an incapable person: P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]–[34].

[38] A change in the administrative arrangements attending an exercise of protective jurisdiction does not, of itself, alter the character of protective functions or displace the Court’s inherent jurisdiction: Re WM (1903) SR (NSW) 552at 567 and 569.

[39] The Court’s inherent jurisdiction is generally preserved in order to deal with unforeseen or extraordinary problems (Re Eve [1986] 2 SCR 388 at 411 ; 31 DLR (4th) 1at 17; Re Victoria [2002] NSWSC 647 ; 29 Fam LR 157 at [37]–[40]; Re Frieda and Geoffrey [2009] NSWSC 133 ; 40 Fam LR 608), and as a means of aiding statutory decision-makers in due performance of their functions (P v NSW Trustee and Guardian [2015] NSWSC 579 at [116]).

…

[45] … as illustrated by Secretary, Department of Family and Community Services; Re “Lee” [2015] NSWSC 1276 at [10]–[12], an orderly transition from one state of affairs to another might require an exercise of ancillary powers incidental to the protective jurisdiction in circumstances in which there might otherwise be no occasion to acknowledge such a power.

…

[48] The Court’s inherent jurisdiction exists to do what is for the benefit of a person incapable of managing his or her own affairs. Its limits (or scope) have not been, and cannot be, defined save by reference to the purpose governing an exercise of the jurisdiction: Marion’s Case (1992) 175 CLR 218at 258; Re Eve [1986] 2 SCR 388at 413–414 and 427; 31 DLR (4th) 1 at 19 and 29).

[49] This purposive approach to an exercise of protective jurisdiction requires that close attention be given to the personal circumstances of each individual whose capacity for self-management comes under scrutiny. Whatever its historical origins, or the present form of administrative machinery aiding its operation, the protective jurisdiction of the Court is plenary and seamless. It is unconstrained by procedural categories that attended the English Lord Chancellor’s exercise of similar jurisdiction over lunatics and children in the 1820s. Nevertheless, according to its purpose, it is conditioned upon an examination of the particular circumstances of each person subject to it, paying due regard to the legal significance of a person’s attainment of majority.

47. Brereton J has been required to deal with a similar problem to that with which I am now faced in the case involving Lee, in respect of whom comparable orders were made to those that I have made in relation to Anita. In Secretary, Department Family and Community Services; Re “Lee” [2015] NSWSC 1276, in which judgment was given before Lee turned 18 years old, Brereton J said:

[6] Normally, in a case such as this, when the parental responsibility order expires, it is replaced by a guardianship order made by the NSW Civil and Administrative Tribunal. On 22 July 2015, NCAT made an order appointing the Public Trustee as Lee’s guardian for a period of 12 months from the date of the order, with the functions of advocating generally for Lee and, from 4 September 2015, deciding where she may reside and making decisions about services to be provided to her. The guardianship order does not apparently confer any power to detain Lee — unlike the guardianship order made in the not dissimilar case of Re Meryl …

[7] I am even more troubled that despite the guardianship order of 22 July 2015, there appears to have been no engagement by the Public Guardian with the Secretary in order effectively to manage the transition of Lee’s arrangements and how the Public Guardian might gain an appreciation of the issues, how they have been managed to date and how their management might continue. Close consultation between those with present and future responsibility for Lee’s welfare is self-evidently essential if there is to be an optimal transition.

[8] For those reasons, I am of the view that the guardianship order in its present form does not provide an adequate replacement safety net for that currently in place where there is parental responsibility to the Minister, coupled with the secure accommodation orders. As it seems to me the present situation is that the Minister’s parental responsibility for Lee will, in any event, expire when she attains 18. Thereafter the only person who will have responsibility for her will be the Public Guardian, whose responsibility is limited in the way I have described. I do not think that satisfactorily provides for her challenging needs. In those circumstances, the court should retain supervision of her care until a more satisfactory arrangement is in place, and I am not inclined to discharge the current orders effectively automatically upon Lee attaining 18 years. [Emphasis added]

…

[10] After Lee attains 18 years of age, the continued availability of the parens patriae power may become dubious. However, the power is one to make decisions for and in respect of persons who are unable to make the relevant decisions for themselves; that is, persons who need the court’s protection. Conventionally it is exercised in respect of those who lack legal capacity, either because they are children, or because they are incapable. The circumstance that a child attains majority does not mean that the power ceases to be available, at least where upon attaining adulthood she remains incapable, for example because the lack of capacity is attributable not just to age but also to mental health.

48. Brereton J subsequently made orders in circumstances where his Honour was satisfied that the exercise of the court’s parens patriae jurisdiction was no longer required: see Secretary, Department of Family and Community Services: Re “Lee” [2016] NSWSC 138, where his Honour said:

[1] These proceedings were instituted by the Minister and the Secretary — then known as the Director-General — while Lee was in the parental responsibility of the Minister. As Ms England has submitted, the purpose of the proceedings was to make, pursuant to the Court’s inherent parens patriae jurisdiction, provision for Lee’s care, chiefly by way of a secure accommodation order, while she was in the parental responsibility of the Minister. Lee attained 18 years of age last year and is no longer under the Minister’s parental responsibility. The Public Guardian has been given a number of functions in respect of her care and management under a guardianship order. The Court has retained supervision of the matter after Lee attained 18 years of age in order to facilitate the transfer and transition of responsibility for Lee to the Public Guardian as she became a young adult. I think those ends have now been achieved as well as they can be in the circumstances, although Lee continues to pose enormous challenges to those with responsibility for her care.

[2] As has been submitted, it is encouraging that she has established, and will maintain under the arrangements now in place for her ongoing care, a good connection with the service providers from Allambie who will retain responsibility, by arrangement with the Public Guardian, for provision of services to Lee. It is also pleasing that it has been reported that Lee has established a very positive working relationship with Ms King of the Public Guardian. It is clear enough that the arrangements now in place for Lee are the best that can be achieved in the circumstances. That is not to say that great risks do not remain, as the recent history of criminal arrests and drug use indicate. However, I agree now that appropriate arrangements for Lee’s ongoing management and care are in place, there is no utility in maintaining these proceedings any longer. The enormous responsibility that comes with Lee’s care is now entrusted to the Public Guardian.

49. It is of some significance that Brereton J gave the first of these judgments on 2 September 2015, two days before Lee turned 18 years of age; and his Honour then made his final orders on 16 February 2016, some five months later. During this period, Lee remained the subject of the exercise of the court’s parens patriae jurisdiction. The guardianship order made by NCAT, in favour of the Public Guardian, had been in place for about five months.

50. From these authorities, the following propositions emerge relevant to the immediate question of what can and should be done for the transition of Anita into a satisfactory, ongoing regime for her care and safety:

1. The parens patriae jurisdiction extends as far as necessary for the protection of Anita, once the court is satisfied that her circumstances are exceptional, and the level of her incapacity requires the court’s protection.

2. The court must exercise the jurisdiction cautiously so that, while the court must identify and implement what is necessary for Anita’s own protection, the court must be careful not to be excessive, or to go further than is necessary to protect Anita.

3. The court has a positive obligation to exercise the jurisdiction where that is necessary to protect Anita.

4. The court is not bound by any technicality in the exercise of the jurisdiction.

5. The court must address the transition of Anita from minority to adulthood, to give due legal significance to Anita’s attainment of majority, and to ensure that there is no unlawful interference with her exercise of free will, to the extent that Anita has the capacity to exercise that free will without exceptional risk to her well-being.

6. The court must have regard to the fact that it must exercise the jurisdiction in conjunction with statutory tribunals, statutory office holders, and agencies of the executive government; and that the effective exercise of the jurisdiction will require the engagement of a system of administrative support, to the extent that it is available.

7. The change in the administrative arrangements, whereby parental responsibility in the Minister has been replaced by the guardianship of the Public Guardian, does not displace the court’s jurisdiction.

8. On the contrary, the jurisdiction is preserved in order to deal with unforeseen or extraordinary problems, as a means of aiding statutory decision-makers in the due performance of their functions.

9. The court may exercise its jurisdiction to supervise and facilitate an orderly and appropriate transition from one administrative arrangement to another.

10. In the present case, Anita’s need for protection arose almost entirely as a result of her mental disabilities, and not out of her minority, and, as the evidence demonstrates, her need for protection has not materially abated. As such, her attainment of adulthood has real but not conclusive significance in regard to the continuation of the need to exercise the jurisdiction.

11. The court’s power extends to the court declining to dismiss the summons on the invitation of the Secretary, at this stage in the process of transition. However, the court must respond realistically to the limitations on the power and resources of the Secretary, following the end of the Minister’s parental responsibility for Anita. As Anita’s welfare is paramount, and as the Minister and the Secretary invoked the court’s parens patriae jurisdiction, the court has the power to require the proceedings to continue to support the exercise of the jurisdiction during the necessary administrative transition; but that process should be completed expeditiously to enable the Secretary to retire from further involvement.

12. The court had power to extend the exercise of the original control and secure accommodation orders, although it was not asked to do so in this case, so the power need not be considered further.

13. The court has power to require all agencies that have been engaged in providing support and protection to Anita to cooperate in the transition; to ensure that the most effective regime is put in place for the ongoing and long-term protection of Anita.

14. The court has power to require the Public Guardian to report to the court, and to make timely and appropriate decisions concerning the ongoing and long-term protection of Anita. However, the objective must be the early achievement of an outcome that will justify the court ending its exercise of the jurisdiction, in a manner consistent with the fulfilment of its duty to Anita; given the absence of any continuing need for relief at the behest of the administrative authority responsible for Anita’s care and well-being.

51. For these reasons, I am therefore satisfied that it was appropriate for the court to decline to dismiss the balance of the summons at the request of the Secretary, and that it is proper for the proceedings to remain on foot, at least in the short term, to enable the court to be satisfied that it has properly performed its duty to Anita, because it has been satisfied that the transition in administrative arrangements for Anita’s care and well-being has been properly implemented.

52. Notwithstanding these observations, I will not make any orders at this time, particularly insofar as they may affect the exercise by the Public Guardian of the powers vested in it by the guardianship order made by NCAT. The Public Guardian has not been given any notice that the court might consider making orders, and has not been given an opportunity to put submissions to the court.

53. Furthermore, the court should respect the independence of the Public Guardian as far as is possible. As it is to be expected that it will be necessary for NCAT to extend the existing guardianship order, and as that will have the effect that the Public Guardian will have to take long-term responsibility for Anita’s welfare, the court should not unnecessarily intrude upon the decision-making process of the Public Guardian.

54. However, the court should not cease its supervision over Anita’s welfare until it is positively satisfied that, in a timely way, the transition from the parental responsibility of the Minister to the guardianship of the Public Guardian has been satisfactorily implemented.

55. I propose to cause my associate to communicate with the legal representatives of the Secretary, the Public Guardian, Anita’s mother and, if she believes that she has a continuing role, Anita’s independent legal representative, to fix a hearing for directions concerning the future exercise by the court of its parens patriae jurisdiction in respect of Anita. It will be necessary in the first instance that the directions hearing occur soon.

56. At this stage, I will do no more than to respectfully request Ms Guthrie to consider the observations that I have made in this judgment, and the immediate need to make appropriate decisions to deal with Anita’s transition from the secure accommodation that she formerly had, to the most appropriate alternative available for her long-term supported accommodation and care.

51. It seems obvious that it is necessary to consider and address the real and persistent behavioural problems that have continually put Anita’s health and welfare at risk. The result of sustained expert involvement in the provision for Anita’s future by officers of FACS is that her residence in the supported accommodation at Ruse is in her best interests, at least for the immediate future. While changes to Anita’s residential arrangements may be possible, which are more in keeping with her own wishes, stark realism is required in judging what changes may be feasible, and when they may be safely implemented. It is crucial that the utilisation and maintenance of the special funding arrangements for Anita’s future be considered, and the greatest of care be taken about the possible consequences for Anita’s long-term well-being, if a course is taken whereby that funding is lost.

**********

Decision last updated: 16 November 2017