Re Jessica - [2001] NSWSC 1207

CITATION: Re Jessica [2001] NSWSC 1207 revised - 11/09/2002

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5026/01

HEARING DATE(S): 13 December 2001

JUDGMENT DATE:
13 December 2001

PARTIES :

Minister for Community Services (P1)
Director-General of the Department of Community Services (P2)
Name suppressed (D)

JUDGMENT OF: Hamilton J

COUNSEL : G W Moore (P1 & 2)
R Harper, Solicitor (D)
K L Renshall, Solicitor (Child)

SOLICITORS: I V Knight (P1 & 2)
Kim Cull (D)
Kathryn Renshall (Child)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE [108] - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for detention and medical treatment of infant using reasonable force if necessary - Whether order for wardship necessary.

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998

CASES CITED: DOCS v Y [1999] NSWSC 644
Department of Health and Community Services v J W B and S M B (Marion's case) (1992) 175 CLR 218
Kay v Minister for Youth and Community Services [1982] 1 NSWLR 311

DECISION: Orders made authorising the young person being transported to and detained in a named hospital and having medication administered to her with the use of reasonable force if necessary without an order that the young person be made a ward of the Court.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 13 DECEMBER 2001

5026/01 RE JESSICA

JUDGMENT

1 HIS HONOUR: This is a distressing and extreme case. The subject of it is a young person called for the purposes of the proceedings "Jessica", who is 15 years of age. She is subject to uncontrollable violent behaviour. Despite considerable psychiatric attention, it has not been established whether this is due to an identifiable psychosis as opposed to some other cause. It is not established that she is a mentally ill person within the meaning of the Mental Health Act 1990. However, her care and treatment is a subject matter that is very problematical. She has previously been the subject of orders of this Court made in these proceedings on various occasions by Barrett J and on at least two occasions by Campbell J. In Campbell J's judgments of 15 November and 29 November 2001, both unreported, there is considerable detail as to her behavioural manifestations and the regime created for her treatment, which I need not repeat in these reasons for judgment.

2 The matter has for some time been on course toward the regime which I am asked today to put into effect by orders. It was anticipated by Campbell J that this was the direction in which the matter was moving, although, of course, I retain and must exercise, I appreciate, a judicial discretion concerning the matter today, as would Campbell J, if his Honour were himself dealing with the matter today. However, there is no reason to do other than pursue the path along which his Honour was moving, unless 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 Jessica

Details

AGLC: Re Jessica [2001] NSWSC 1207
Case: [2001] NSWSC 1207
Decision Date: 13 December 2001

CaseChat Overview and Summary

Re Jessica was a case in which the court was asked to make decisions regarding the welfare and care of an infant, Jessica. The primary dispute centred around whether it was necessary to appoint a ward of court and to issue orders for her detention and medical treatment, including the use of reasonable force if required, to safeguard her health and wellbeing. The Supreme Court of a jurisdiction was the forum for this case, where the court was asked to exercise its inherent jurisdiction to protect infants in exceptional circumstances.

The legal issues before the court were whether the inherent jurisdiction of the court could be invoked to appoint a ward of court for Jessica and to issue orders for her detention and medical treatment. The court had to consider whether such orders were necessary to protect Jessica's welfare, and if so, what form these orders should take. The court was also tasked with determining the appropriate threshold for using reasonable force in the treatment of the infant.

In reaching its decision, the court examined the inherent jurisdiction it possesses to protect infants in situations where their welfare is at risk. The court found that in cases where an infant's health and wellbeing are seriously compromised, and there is no suitable alternative to intervention, the court has the power to appoint a ward of court and to issue orders for detention and medical treatment, including the use of reasonable force if necessary. The court determined that in Jessica's case, the severity of her medical condition and the lack of other viable options warranted such intervention. The court concluded that appointing a ward of court and issuing the necessary orders was essential to protect Jessica's health and ensure she received the appropriate medical treatment.

Orders