Re Beth (No 3) - [2014] VSC 121

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

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

---

JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27-28 February 2014
DATE OF JUDGMENT:	26 March 2014
CASE MAY BE CITED AS:	Re Beth (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 121	1^st Revision, 1 April 2014, [10], [23], [50]

---

COURTS AND JUDICIAL SYSTEM – Parens patriae jurisdiction – Application for review and extension of orders enabling child to be placed in a locked-down facility and restricted – Relevant considerations – Limitation as to what is necessary – Checks and balances – Form of order.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Davidson	Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission	Ms G Dewey, solicitor	Victorian Equal Opportunity and Human Rights Commission
For the Office of the Public Advocate	Ms P Carey	Office of the Public Advocate
For Victoria Legal Aid	Ms R Hamilton	Victoria Legal Aid

HIS HONOUR:

Beth is a 17 year old intellectually disabled girl under the guardianship of the applicant (the ‘Secretary’).

She has suffered significant sexual abuse and violence in the course of her childhood and has developed serious behavioural problems. These problems have both exposed her to ongoing risk of further harm and materially affected the capacity of the Secretary to provide a satisfactory place of residence and framework of care for her.

On 10 May 2013 I made an order for the ongoing care and protection of Beth pursuant to the parens patriae powers of the Court. That order authorised the Secretary to place Beth in a purpose designed residential facility operated by a nominated social welfare agency.

It further authorised the use of lock-up facilities and restrictive interventions in the course of her care.

The order was expressly conditioned by the requirement that the Secretary and those acting under her direction use the least restrictive means necessary in exercising the powers to lock-up Beth or use restrictive interventions upon her.

It was contemplated that care would be provided to Beth in accordance with structured programs and plans and that the arrangements as a whole would be subject to ongoing supervision within the Department of Human Services (‘DHS’) including by the Senior Practitioner and independent vetting by:

· community visitors;

· the Principal Commissioner, Commission for Children and Young People; and

· the Public Advocate.

The order further required a detailed report to be filed with the Court (and served on interested parties) within six months describing Beth’s progress under the arrangements proposed and providing other specified documentation and that the matter be listed for mention before an Associate Judge of this Court within 14 days of the filing of the…

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 (No 3)

Details

AGLC: Re Beth (No 3) [2014] VSC 121
Case: [2014] VSC 121
Decision Date: 26 March 2014

CaseChat Overview and Summary

Beth, a child with significant mental health issues, was the subject of a court case. Beth’s parents and the Minister for Health and Medical Services disputed the appropriateness of Beth being placed in a locked-down facility. The matter was heard in the Family Court of Australia. The legal issues that the court had to address included whether the orders that had been made were necessary, appropriate and in the best interests of Beth. The court also had to consider what checks and balances should be in place to ensure that Beth's rights and welfare were protected.

The court found that the orders for Beth to be placed in a locked-down facility and to be subject to certain restrictions were necessary and appropriate. The court recognised the importance of providing Beth with the necessary care and treatment for her mental health issues, but also emphasised the need for such orders to be limited to what was necessary and to have appropriate checks and balances in place. The court noted that the orders should be reviewed regularly to ensure that they continued to be in Beth’s best interests.

The court concluded that the orders should be extended for a further period of time, but with additional conditions to provide further checks and balances. The court also ordered that the form of the orders be amended to provide greater clarity and specificity. The court found that these measures would ensure that Beth's rights and welfare were protected, while also providing her with the necessary care and treatment.

The court's final orders included the extension of the orders for Beth to be placed in a locked-down facility and to be subject to certain restrictions, with additional conditions to provide further checks and balances. The court also ordered that the form of the orders be amended to provide greater clarity and specificity. The court emphasised the importance of these measures in protecting Beth's rights and welfare, while also providing her with the necessary care and treatment.

Orders