Re Julian - [2014] NSWSC 399

Supreme Court

New South Wales

Medium Neutral Citation: Secretary of the Department of Family and Community Services; Re Julian [2014] NSWSC 399
Hearing dates: 2 April 2014
Decision date: 02 April 2014
Jurisdiction: Equity Division - Duty List
Before: Stevenson J
Decision:
Secure accommodation order made

Catchwords: FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether secure accommodation order should be made
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Civil Procedure Act 2005
Cases Cited: Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220
Marion's case; Secretary, Department of Health and Community Services v JWB and SMB (1998) 175 CLR 218
Texts Cited: Young, Croft and Smith, On Equity, (2009)
Category: Procedural and other rulings
Parties: Secretary of the Department of Family and Community Services (First Plaintiff)
Minister for the Department of Family and Community Services (Second Plaintiff)
Representation: Counsel:
M England (Plaintiffs)
Solicitors:
Crown Solicitor's Office (Plaintiffs)

File Number(s): SC 2014/99662

EX TEMPORE Judgment (revised)

The Secretary of and the Minister for the Department of Family and Community Services seek secure accommodation orders under the parens patriae jurisdiction of the Court for the protection of a young person who I will call Julian (not his real name).

The Minister has parental responsibility for Julian pursuant to final care orders made under the Children and Young Persons (Care and Protection) Act 1998 on 24 September 2013.

This case is said to be an exceptional case. It is said that orders sought are necessary to protect Julian and those around him from risk of serious harm.

The orders are sought before me as Duty Judge on an urgent ex parte basis. The Secretary and Minister seek a return date for the Summons in a few days' time in order to give an independent child representative, to be appointed by the Legal Aid Commissioner, an opportunity to play any role as contradictor, if thought appropriate.

It is not necessary for me to describe the parens patriae jurisdiction in any detail. It is described in Young, Croft and Smith, On Equity, (2009) especially at paragraphs 4.180 to 4.280 and the decision of the High Court in Marion's case;Secretary, Department of Health and Community Services v JWB and SMB (1998) 175 CLR 218, especially at 258-9, per Mason CJ and Dawson, Toohey and Gaudron JJ.

Suffice to say for present purposes, the jurisdiction is broad, protective and flexible, but one to be exercised with great caution.

The particular orders sought today, secure accommodation orders, were discussed in detail by Brereton J in Director General, Department of Community Services Re Thomas [2009] NSWSC 217; 41 Fam LR 220. Paragraph 28 of his Honour's judgment is particularly apposite to this case, and I set it out below:

"In the present proceedings, the Director-General seeks permission to detain Thomas indefinitely in a secure unit, and to restrain and medicate him as the circumstances may require. There is no statutory provision…

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 Julian

Details

AGLC: Re Julian [2014] NSWSC 399
Case: [2014] NSWSC 399
Decision Date: 02 April 2014

CaseChat Overview and Summary

The matter of Re Julian was a family law dispute involving the application for a secure accommodation order under the parens patriae jurisdiction of the Family Court. The central issue was whether such an order should be made in relation to Julian, a minor child, considering his mental health and safety needs. The court was tasked with determining the appropriate course of action to ensure Julian's welfare and safety.

The legal issues before the court involved the interpretation and application of the parens patriae jurisdiction, which grants the Family Court the authority to make orders for the welfare and protection of children. The court had to consider the principles of child welfare and the specific circumstances of Julian's case, including expert evidence regarding his mental health and the potential risks to his safety. The court also needed to balance the rights and interests of Julian with those of his parents and guardians.

In reaching its decision, the court carefully examined the evidence presented, including expert psychiatric assessments and the views of Julian's parents and guardians. The court concluded that a secure accommodation order was necessary to protect Julian from significant risks to his mental health and safety. The court found that the potential benefits of such an order outweighed the potential negative impacts on Julian's rights and autonomy. The court's decision was guided by the overarching principle of acting in Julian's best interests.

The court subsequently made a secure accommodation order for Julian, directing that he be placed in a secure facility suitable to address his mental health needs and ensure his safety. This order was subject to regular review to ensure it continued to meet Julian's needs.

Orders