Legal Research
Cases
Re Anita (No 3)

Re Anita (No 3)

Case [2016] NSWSC 1959 2 August 2016

Parens Patriae Jurisdiction

Guardianship

Transition to Adulthood

Public Guardian

Family Law

No judgment structure available for this case.

Type to search within this case.

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

This case raises a question about the nature and exercise of the court’s parens patriae jurisdiction.
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.
Anita is now an adult, as she attained the age of 18 years on 28 March 2016.
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.
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.
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.
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.
On 22 August 2013, on the application of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Anita (No 3)

Details

AGLC: Re Anita (No 3) [2016] NSWSC 1959
Case: [2016] NSWSC 1959
Decision Date: 02 August 2016

CaseChat Overview and Summary

The case of Re Anita (No 3) involved a young person who was the subject of a parens patriae jurisdiction order when they were 13 years old. The order was made for control and secure accommodation due to concerns about their welfare. The dispute reached the court when the young person, now aged 18, sought clarification and direction regarding their status and the transition of care and responsibility. The court was required to decide whether the order for parental responsibility, which was initially in favour of the Minister for Family and Community Services, continued after the young person attained the age of 18. Additionally, the court needed to assess the applicability and principles of the parens patriae jurisdiction in the context of the guardianship order made by the NSW Civil & Administrative Tribunal in favour of the Public Guardian.

The court found that the order for parental responsibility ceased when the young person became 18, and therefore, the Minister's responsibility for their welfare and decision-making ended. However, the court recognised that the parens patriae jurisdiction continued to apply, allowing for the Public Guardian to exercise guardianship powers over the young person. The court outlined the principles applicable to the supervision of the transition to the Public Guardian's guardianship, emphasising the need for careful consideration of the young person's best interests and the importance of a smooth transition. The court provided guidance on how to manage the transfer of responsibilities and ensure that the young person's welfare remained the paramount concern throughout the process.

The court's decision underscored the importance of maintaining a focus on the welfare and best interests of the young person, even as their legal status and the entities responsible for their care changed. The court ordered that the transition to the Public Guardian's guardianship should be closely supervised, with regular reporting to ensure that the young person's needs were being met and that they were supported in making informed decisions about their future. This decision provided clarity for all parties involved and ensured that the young person's welfare remained at the forefront of any decisions made regarding their care and accommodation.

Orders