Re Beth

Case [2013] VSC 189 23 April 2013

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IN THE SUPREME COURT OF VICTORIA

Not restricted

AT GEELONG

COMMON LAW DIVISION

S CI 2012 06398

IN THE MATTER of an application in relation to ss 172 and 173 of the Children, Youth and Families Act 2005 and in the parens patriae jurisdiction of the Supreme Court of Victoria
Application by the Secretary to the Department of Human Services	Applicant

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JUDGE:	OSBORN JA
WHERE HELD:	Geelong
DATE OF HEARING:	7, 8 and 12 March 2013
DATE OF JUDGMENT:	23 April 2013
CASE MAY BE CITED AS:	Re Beth
MEDIUM NEUTRAL CITATION:	[2013] VSC 189	1^st Revision: 15 May 2013, paras [81] and [156]

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Courts and judicial system – parens patriae jurisdiction – best interests of the child – where the child exhibits self-destructive behaviours when not in secure facilities – application for orders enabling child to be placed in a locked-down facility and restricted – where statutory powers under the Children, Youth and Families Act 2005 ch 4 and Disability Act 2006 pts 7 and 8 are not adequate – whether parens patriae jurisdiction supplementary to or excluded by relevant statutory powers under the Children, Youth and Families Act 2005 or Disability Act 2006 – whether inconsistency between ss 140 and 149 or 150A of the Disability Act 2006 and powers under the Children, Youth and Families Act 2005 to detain children, including under ss 172 and 173 - independent representation – voice of the child – interference with human rights – Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 10(c), 12, 13(a), 21, 32, 38 – conditions upon the primary orders sought – least restrictive means necessary to be used – reporting requirements – statutory requirements for plans – provision for timely review of the orders of the Court – liberty to apply.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D Mortimer SC with Ms J Davidson	Ms K Miller, Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission	Ms G Dewey, solicitor	Ms S Cauchi, Victorian Equal Opportunity and Human Rights Commission
For the Public Advocate	Ms P Carey, solicitor	Mr P Grano, Office of the Public Advocate
For Victoria Legal Aid	Ms D Harris	Ms L Akenson, Victoria Legal Aid

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The Secretary as guardian and the operation of the Children, Youth and Families Act 2005 6

The Disability Act............................................................................................................................ 15

Part 7 of the Disability Act.............................................................................................................. 28

The parens patriae jurisdiction...................................................................................................... 33

The facts............................................................................................................................................. 39

The view............................................................................................................................................. 59

Conclusions on the facts................................................................................................................. 61

The premises underlying the order sought................................................................................. 62

Independent representation........................................................................................................... 63

The Charter........................................................................................................................................ 67

Conclusion......................................................................................................................................... 69

HIS HONOUR:

Introduction

Beth[1] is a 16 year old girl who was removed from the care of her parents by Queensland authorities when she was a small infant. The applicant (‘the Secretary’) has been her guardian since she was four years old. Beth’s subsequent history has presented special difficulties and severely tested the capacity of the Secretary to provide adequately…

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 Beth

Details

AGLC: Re Beth [2013] VSC 189
Case: [2013] VSC 189
Decision Date: 23 April 2013

CaseChat Overview and Summary

The matter before the court involved Beth, a child with intellectual disability, who exhibited self-destructive behaviours when not in secure facilities. The application was for orders enabling Beth to be placed in a locked-down facility and restricted, as the statutory powers under the Children, Youth and Families Act 2005 and the Disability Act 2006 were deemed inadequate. The court had to determine whether the parens patriae jurisdiction was supplementary to or excluded by the statutory powers under these acts, and whether there was an inconsistency between the relevant sections of the Disability Act 2006 and the Children, Youth and Families Act 2005. Additionally, the court considered the implications of the Charter of Human Rights and Responsibilities Act 2006, particularly in relation to Beth's human rights and the need for independent representation.

The legal issues the court had to resolve included the scope and application of the parens patriae jurisdiction in relation to statutory powers, the interpretation of relevant sections of the Disability Act 2006 and the Children, Youth and Families Act 2005, and the balancing of Beth's rights and needs with the necessity to restrict her liberty. The court also had to consider the implications of the Charter of Human Rights and Responsibilities Act 2006 on the orders sought and the conditions to be imposed. The court was tasked with determining whether the statutory powers provided adequate mechanisms to address Beth's needs or if the court's intervention was necessary and permissible under its parens patriae jurisdiction.

The court found that the parens patriae jurisdiction was not excluded by the statutory powers under the relevant acts but could be supplementary to them. The court held that there was no inconsistency between the provisions of the Disability Act 2006 and the Children, Youth and Families Act 2005. The court also considered the implications of the Charter of Human Rights and Responsibilities Act 2006, determining that the proposed orders were necessary to protect Beth's safety and well-being, while striving to respect her rights as much as possible. The court concluded that the orders sought were in the best interests of Beth, provided they were implemented in the least restrictive means necessary, with appropriate independent representation and reporting requirements. The court made orders to this effect, allowing for timely review of the orders and provision for Beth's liberty to apply for further relief.

Orders