Re Kara (No 2)

[2020] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation:

Re Kara (No 2) [2020] NSWSC 1148

Hearing dates:

26 August 2020

Date of orders:

26 August 2020

Decision date:

27 August 2020

Jurisdiction:

Equity

Before:

Williams J

Decision:

Orders 9, 10 and 11 made on 12 August 2020 are continued. Orders made which facilitate initial contact between Kara and Ms P. Orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) on 12 August 2020 are discharged and, in lieu thereof, orders are made under that Act prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity of Kara up until 30 September 2020.

Catchwords:

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person for the purposes of undertaking that treatment – where orders previously made prohibiting the disclosure or publication of the location of the young person – where young person’s mother now aware of location of the young person – where young person seeks contact with mother whilst in confinement – whether it is appropriate to continue orders previously made for medical treatment and confinement of the young person – whether it is appropriate for orders to be made which facilitate contact between the young person and her mother

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, Pt 2 Div 1A of Ch 8

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Re Kara [2020] NSWSC 1083

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Communities, Families and Disability Services (Second Plaintiff)
Kara (First Defendant)
Ms P (Second Defendant)

Representation:

Counsel:
Mr G Moore (First and Second Plaintiffs)
Ms K Kelso, solicitor (First Defendant)

Solicitors:
NSW Crown Solicitor’s Office (First and Second Plaintiffs)
Legal Aid NSW (First Defendant)

Self-represented:
Second Defendant

File Number(s):

2020/235191

Publication restriction:

On 26 August 2020, the Court made orders prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Kara”).

Judgment

1. These reasons should be read together with, and assume familiarity with, my reasons for judgment dated 17 August 2020: Re Kara [2020] NSWSC 1083 (the first judgment).

2. The substantive orders made by the Court on 12 August 2020 in relation to the young person known in this proceeding as “Kara” are set out at [4] and [76] of the first judgment.

3. This matter was listed before me on 26 August 2020 for the first stage of what will be ongoing review and consideration by the Court of those orders, having regard to evidence served by the plaintiffs concerning Kara’s transport to and transition into the hospital where she is currently being held for the purpose of the medical treatment authorised by orders 9, 10 and 11 made on 12 August 2020 as set out at [4] of the first judgment, the progress of that treatment, medical assessments undertaken by Kara’s treating doctors and other matters: see [72]–[77] of the first judgment.

4. At the conclusion of the hearing on 26 August 2020, I made orders in the terms set out in Annexure “A” to this judgment on the basis that I would publish my reasons as soon as possible.

5. At the hearing on 26 August 2020, the plaintiffs relied on an affidavit of Ms Benjamin affirmed on 25 August 2020 together with Exhibit HB-2 to that affidavit.

6. The Court heard submissions from Mr Moore of counsel, who appeared for the plaintiffs and from Ms Kelso, solicitor, who appeared for Kara. Kara’s mother, who is the second defendant and who is known by the pseudonym “Ms P”, appeared in person and made submissions.

7. The orders made on 26 August 2020 fall into four categories:

1. Suppression and non-publication orders concerning Kara’s identity (orders 4 to 6).

2. Orders reflecting the plaintiffs’ acceptance that information concerning Kara’s location need not be withheld from Ms P (orders 7 to 11).

3. Orders concerning contact between Kara and Ms P (orders 12 and 13).

4. Orders concerning ongoing monitoring and review by the Court (order 14).

8. In addition, I determined that it was appropriate that orders 9, 10 and 11 made on 12 August 2020 should continue. The terms of those orders are set out at [4] of the first judgment. They operate until further order, and authorise Kara’s confinement at the medical facility to which she was taken on the evening of 12 August 2020 (in accordance with order 12 made on that date) for the purpose of medical treatment as advised by certain named doctors. The orders also authorise the use of reasonable force if and to the extent necessary to restrain Kara from injuring herself and/or others.

9. These are my reasons for making the orders made on 26 August 2020 and for permitting the continued operation of orders 9, 10 and 11 made on 12 August 2020.

Reasons for continuation of confinement, treatment and restraint orders

10. The confinement, treatment and restraint orders were made on 12 August 2020 on the basis that, owing to Kara’s history of significant trauma, her significant drug use, her risk-taking behaviour, her inability to make good decisions for herself, and the failure of past efforts by Kara to engage in rehabilitation voluntarily (despite her desire to do so), Kara was facing a very high risk of death and the confinement and treatment was the only remaining available course of action to save her: see [6]–[40], [54]–[61] and [62]–[73] of the first judgment.

11. The nature of the treatment is described at [41]–[50] of the first judgment.

12. The paediatrician and addiction medicine specialist referred to at [28] of the first judgment, who prepared the report dated 6 August 2020 that is referred to extensively in the first judgment, can now be identified as Dr Bronwyn Milne. The hospital facility at which Kara is confined and being treated in accordance with the orders made on 12 August 2020 can now be identified as the Saunders Unit at the Sydney Children’s Hospital in Randwick.

13. Dr Milne prepared a further report for the Court dated 24 August 2020.

14. Dr Milne’s diagnosis is unchanged from her report dated 6 August 2020 (see [30] of the first judgment), save that she has now also diagnosed Kara as suffering from learning difficulties based on assessments performed at St George Hospital in 2009.

15. Dr Milne’s report confirms that Kara was admitted to the Saunders Unit at approximately 8:00pm on 12 August 2020. Whilst she came into the unit willingly, she became distressed later that evening when she was preparing to leave and was informed that she could not do so. However, she settled before falling asleep.

16. Dr Milne’s report dated 24 August 2020 states that Kara has displayed symptoms of amphetamine withdrawal (particularly irritability, agitation, anxiety, and aggressive behaviours). She has been treated with diazepam (a reducing dose, which Dr Milne aims to continue reducing and cease within the next week) and antipsychotic medication to manage these symptoms. Kara has also displayed symptoms of nicotine withdrawal and has been treated with nicotine patches, gum and inhalers. In addition to these pharmacological treatments, Kara has been engaging in drug and alcohol psychology sessions, ongoing mental health review, psychiatric consultations.

17. Dr Milne’s report identifies the remaining stages of treatment as including:

1. daily medication review;

2. daily review by the Saunders Unit multidisciplinary team (nursing staff, occupational therapists, clinical psychologists, social workers, school teachers and psychiatrists);

3. twice weekly psychiatric review;

4. cognitive assessment to be completed two to three weeks after Kara has been abstinent from cannabis and methamphetamines;

5. drug and alcohol psychology sessions to provide emotion regulation and impulse control, as well as drug and alcohol relapse prevention;

6. safety counselling to help Kara identify safe places and people; and

7. sexual assault and trauma counselling.

18. Dr Milne’s report includes the following record of Kara’s written reflections on her treatment in the Saunders Unit to date, which Kara shared with Dr Milne and her colleague Dr Hattle on 24 August 2020:

“Since I’ve been here. I’ve been detoxing and it’s been very good very surprising

I’ve improved myself I see a betta future for myself feels great being Off the ICE and wanna keep it that way … And wanna be a good role model of older sister for my baby sista … and 2 old siblings …

Wanna stay clean for me and my mother to have a better relationship Since detox. I see a betta future for me and my family.

The Drug ICE has tear my family to pieces and now I wanna bring them pieces back together for my experiences.”

19. On the basis of this evidence, and the evidence adduced on 12 August 2020 as referred to in the first judgment, the plaintiffs supported the continuation of orders 9, 10 and 11 made on 12 August 2020.

20. Ms Kelso informed the Court that she had conferred with Kara on Friday, 21 August. Kara had requested that Ms Kelso convey to the Court that:

1. she is “going good”;

2. she wants to be off drugs and stay off drugs;

3. she wanted to thank the Court for putting her into rehabilitation; and

4. although she would prefer not to be there now, she will “soldier on” if the Court decides that she should continue in the Saunders Unit.

21. Ms Kelso was not instructed to consent to the continuation of orders 9 to 11 made on the last occasion, but she did not oppose the continuation of those orders.

22. Ms P informed the Court that she supported Kara being in the Saunders Unit and remaining there at this stage. Ms P said that she accepts that going into a secure facility for treatment was the only thing to save Kara because she could not make decisions for herself and “she would not have made it” on her own.

23. Both Ms Kelso and Ms P emphasised the importance of Kara being able to have contact with Ms P whilst she is receiving treatment in the Saunders Unit. I will return to this issue later in these reasons.

24. Taking into account all of the evidence and submissions referred to above, in the context of Kara’s history and the extreme risk of death she was facing at the time she was admitted to the Saunders Unit, I am satisfied that it is necessary for Kara’s protection that she continue (until further order of the Court) to be confined in the Saunders Unit to receive the treatment described in Dr Milne’s reports dated 6 and 24 August 2020 in order give Kara the opportunity to achieve her goal of withdrawing from drug use and abstaining from drug use in the future and in order to allow the first steps to be taken towards addressing the trauma that Kara has suffered in the past and identifying the support she requires in the immediate and longer term future in order to ultimately be able to be safe and to make good decisions for herself. I am also satisfied that this is in Kara’s best interests. Orders 9 and 10 made on 12 August 2020 should therefore be continued until further order.

25. One matter that I have taken into account in forming this view is that Kara will now have contact with her mother during the continuation of her confinement and treatment, and the plaintiff submitted that the Court had power to make an order ensuring that such contact occurs. The orders that I made on 26 August 2020 concerning contact operate, in effect, as a condition of Kara’s continued confinement and treatment pursuant to orders 9 and 10 made on 12 August 2020, to ensure that the confinement does not interfere with Kara’s liberty and freedom of communication more than is necessary for her protection. It will be necessary to return to the subject of contact between Kara and her mother later in these reasons.

26. As referred to at [13] of the first judgment, Kara struggles with emotional regulation and her behaviour can be verbally and physically aggressive at times. Dr Milne’s report dated 24 August 2020 gave evidence of five occasions since Kara’s admission to the Saunders Unit when it has been necessary to call security guards as a result of Kara’s aggressive behaviour. One of those occasions was on the evening of her admission, when Kara became distressed upon being informed that she could not leave the unit. Another two of those occasions involved distress relating to Kara not being permitted to telephone Ms P. Dr Milne’s report does not record any use of force or restraints on those occasions. In her affidavit affirmed on 25 August 2020, Ms Benjamin deposed that Kara has responded well to the presence of the security guards and it has not been necessary to use any force to restrain her from injuring herself or others.

27. I am satisfied on the basis of this evidence that it is necessary for Kara’s protection that her treating doctors and staff at the Saunders Unit must have the ability to use reasonable force if necessary to restrain Kara from injuring herself or others. I am also satisfied on the basis of this evidence that their approach to any aggressive behaviour is consistent with that described at [50] of the first judgment and that they have demonstrated their commitment to seeking to address aggressive behaviour without the use of force. For those reasons, I am satisfied that, as things presently stand, the continuation of order 11 made on 12 August 2020 is necessary for the protection of Kara.

28. The orders authorising Kara’s confinement and treatment, and the use of reasonable force if and to the extent necessary to restrain her from injuring herself or others, continue only until further order of the Court. It is expected that Kara’s course of treatment and assessment at the Saunders Unit may be completed in approximately four weeks. In the meantime, the proceeding is listed before the Court for further monitoring and review on 11 September 2020. If the plaintiffs, Kara or Ms P consider that Court intervention or review is required earlier than 11 September 2020 for any reason, they have liberty to apply to the Court on 24 hours’ notice. The orders made on 26 August 2020 to facilitate ongoing monitoring and review by the Court are referred to further below.

Reason for orders concerning contact between Kara and Ms P

29. At the time of the hearing on 12 August 2020, the plaintiffs had determined that it would not be in Kara’s best interests to have face-to-face or telephone contact with Ms P during the withdrawal phase of her treatment (anticipated to last approximately two weeks). The plaintiffs had determined that contact between Kara and Ms P should be limited to exchange of letters, cards and photographs, and that Kara would be supported with contact from an Aboriginal health nurse and support workers from an Aboriginal organisation who had been providing mentoring services to Kara for some time. The plaintiffs’ reasons for that determination are recorded at [44]–[46] of the first judgment. For the same reasons, the plaintiffs had made a determination under Part 2 Division 1A of Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) not to disclose to Ms P the precise location of the medical facility at which Kara was being treated.

30. These determinations made by the plaintiffs were not the subject of any application for approval by the Court. However, the Court made the orders authorising Kara’s confinement and treatment in the knowledge that the plaintiffs had made these determinations, and that the interference with Kara’s liberty that would be occasioned by her confinement and treatment would also involve at least some interruption to her contact with her mother in the initial withdrawal phase of her treatment.

31. In addition to hearing the evidence of the plaintiffs’ reasons for the determinations referred to in paragraphs [44]–[46] of the first judgment, the Court heard evidence that the plaintiffs would review these determinations if they received advice from Kara’s treating doctors at the Saunders Unit during the withdrawal phase of her treatment that it would be beneficial for Kara to have contact with Ms P, and that the determinations would be reviewed at the end of the withdrawal phase in any event.

32. It is important to record here that the plaintiffs’ determinations were based in part on the plaintiffs’ understanding that Ms P had supplied drugs to Kara in 2019 when she was a voluntary patient at a residential drug and alcohol rehabilitation program. Ms Benjamin gave evidence on 12 August 2020 about that understanding and the basis for it. This is referred to at [22] of the first judgment.

33. However, it is now clear from Ms Benjamin’s affidavit affirmed on 25 August 2020, and the notes that the plaintiffs have now obtained from the operator of that rehabilitation program which were exhibited to that affidavit, that there was no basis for the plaintiffs’ understanding.

34. At the hearing on 26 August 2020, the plaintiffs withdrew the allegation that Ms P had provided to drugs to Kara at the residential program in 2019.

35. Ms P did not have an opportunity to defend the allegation when it was made on 12 August 2020. Even though the allegation has now been withdrawn, it is appropriate to record that, at the hearing on 26 August 2020, Ms P submitted that she had never provided drugs to Kara (with the exception of cigarettes that Ms P said the plaintiffs had purchased for her to provide to Kara on one specific occasion). Ms P also disputed that any of her children had ever provided drugs to Kara. Ms P also submitted that she herself had been free of drugs for the past 8 years and that she wants Kara to be free of drugs.

36. It is clear from Ms Benjamin’s affidavit sworn on 25 August 2020 and from the file notes in Exhibit HB-2 to that affidavit that, from the time that she was first admitted to the Saunders Unit on 12 August 2020, Kara has been asked to speak with or to see her mother, that Kara’s treating doctors recommended as early as 17 August 2020 that telephone contact between Kara and her mother be arranged, that arrangements have nevertheless not yet been made for Kara to speak with her mother, and that this has been and continues to be a source of considerable distress to Kara.

37. Exhibit HB-2 includes a file note of a meeting held on 17 August 2020 between persons including Dr Milne and other staff of the Saunders Unit and representatives of the Department of Communities and Justice. The file notes records that the Saunders Unit team asked the Department representatives at that meeting:

“Is there a way we can safely support [Kara] and her Mum having contact once per week?

…

Can we be creative about how we connect [Kara] and her Mum, can we bring other people in from the family?”

38. The Saunders Unit team also informed the Department representatives at that meeting that they could support Kara with phone conversations if they are planned. Dr Milne gave brief oral evidence at the hearing on 26 August 2020 explaining the need for planning of phone conversations to ensure that Kara had a clear understanding both before and after a phone conversation about when it would occur and supporting her in managing her emotional responses in the aftermath of contact with her mother (including positive responses) and any associated behavioural issues. As I understood the evidence, and the submissions made by Mr Moore on behalf of the plaintiffs, the need for such support arises not from any concern about what Ms P might say to Kara during contact, but from the difficulties Kara experiences in regulating her emotions.

39. At the hearing on 26 August 2020, the Court was informed that the plaintiffs had determined following the meeting on 17 August 2020 not to arrange contact between Kara and Ms P at that stage.

38. In paragraph 44 of her affidavit affirmed on 25 August 2020, Ms Benjamin deposed:

“Throughout the admission, Kara has wanted to speak with her mother. This has been triggering for her and she has become extremely agitated and distressed as a result of not having contact with her mother.”

41. The file notes and reports in Exhibit HB-2 to Ms Benjamin’s affidavit are replete with evidence of Kara’s distress about being unable to speak with or to see her mother. In particular:

1. A handwritten note made by Kara to her mother during the last two weeks reads:

“Mama please come visit me. I’m killen inside my heart. … Watchin everbodys eles moms come visit the kid killen me inside Please try your hardest to come see me.”

2. A note that Kara provided to Ms Kelso and asked Ms Kelso to pass on to the Court reads:

“I need to see my mom cause it’s hurting me inside

She wants the best for me

My mums lot pain like me keeping us family together Tryna the broken pieces and put it back together she’s change her life round for us kids”

3. Dr Milne’s report dated 24 August 2020 includes the following:

“Kara’s primary concern voiced and perseverated on during her admission has been wishing to see her mum. ‘As an Aboriginal kid I have to ring my mum, I don’t want to visit her I just want to ring her, I have rights’ ‘It’s in my culture, I need my mum, its Aboriginal law.’”

42. The evidence before the Court at the hearing on 26 August 2020 did not shed any light on the plaintiffs’ reasons for not arranging telephone contact between Kara and her mother after this issue was raised by the Saunders Unit at the meeting on 17 August 2020. The plaintiffs did not seek the Court’s approval of that decision.

43. Exhibit HB-2 includes a file note of a further meeting between representatives of the Saunders Unit and representatives of the Department of Communities and Justice concerning Kara on 24 August 2020. The file note records:

“Health feel that no contact with her Mum is preventing her from forming a contact with the Saunders team and would like her to support in having contact with her Mum.”

44. At the hearing on 26 August 2020, Mr Moore informed the Court that the plaintiffs now proposed that initial telephone contact between Kara and her mother would be arranged for Monday, 31 August 2020, with the frequency of telephone contact thereafter to be weekly, subject to further consideration of the frequency of contact once Kara’s reaction to the initial telephone call is known. It was submitted on behalf of the plaintiffs that the initial call was planned for Monday to allow time for planning, preparation and logistical issues. Whilst the plaintiffs did not seek the Court’s approval of this proposal, Mr Moore frankly proffered that the Court’s protective jurisdiction in this matter extended to making an order requiring a different approach to contact.

45. Ms Kelso submitted that arrangements should be made for Kara to have contact with her mother as soon as possible for several reasons. First, the lack of contact has been the cause of considerable distress to Kara during her admission, in circumstances where she has otherwise been responding the treatment reasonably well so far. Second, Kara was acutely aware that other children and young persons in the Saunders Unit are able to have contact with their parents, and she sees this happening on a daily basis. This adds to her distress. Thirdly, the lack of direct contact interferes with Ms P’s ability to fulfil her role as the person with parental responsibility for Kara in relation to the aspects of culture and religion. Ms P considers that culture is family. The updates that Ms P has been receiving from the plaintiffs are inadequate to enable her to fulfil this role, which the Children’s Court assigned to her by orders made on 26 March 2020. Ms Kelso did not oppose initial contact being by telephone, and informed the Court that Kara was accepting of contact with her mother being by telephone initially.

46. Ms P submitted that she wanted to start having telephone contact with Kara, and to be able to visit her, as soon as possible. She stated that she was content for the plaintiffs to supervise her visits to Kara in person. Ms P emphasised that the reason she wants to have contact with and to visit Kara is to support and guide her through the treatment process. As I have referred to above, Ms P supports Kara’s treatment in the Saunders Unit. Ms P submitted that the reason why the plaintiffs did not want her to have contact with Kara was because of the lie about her providing Kara with drugs in the past. As I have referred to above, that allegation has been withdrawn. Ms P also expressed a concern that, if Kara is unable to have contact with her, she may go so far as to attempt to leave the Saunders Unit to see Ms P or she may return to using drugs to alleviate her distress. Ms P also submitted that, once Kara has been able to have contact with her, she would like to make arrangements for Kara to have contact with her siblings to begin healing her relationships with them that had been damaged by the impact of Kara’s drug use.

47. I asked the plaintiffs to identify with precision the reasons why they contended that telephone contact between Kara and Ms P should not occur before Monday 31 August 2020 – a further five days after the hearing – notwithstanding that Kara has been distressed about lack of contact throughout her admission, the Saunders Unit had suggested contact as early as 17 August 2020 and the Saunders Unit had more recently expressed the view that ongoing lack of contact may adversely affect Kara’s response to treatment and therapy.

48. There was a short adjournment to allow the plaintiff’s counsel to take instructions about this issue. When the hearing resumed, I informed the parties of the orders I proposed to make, including (subject to hearing the plaintiffs’ response to my question) an order requiring the plaintiffs to arrange telephone contact between Kara and Ms P by 4:00pm on Friday, 28 August 2020.

49. The plaintiffs’ response to my question was to call Dr Milne to give oral evidence by telephone. Dr Milne described a need to prepare Kara for the initial telephone conversation to set clear expectations, and then to support her with her emotional response to the conversation (whatever that response may be). I have already referred to this evidence above. The Court then adjourned for a short period to allow Ms Kelso and Ms P time to consider what cross-examination they wished to conduct. When the hearing resumed, Mr Moore informed the Court that the plaintiffs had been engaged in further discussions with Dr Milne during the adjournment and now accepted that the initial telephone contact between Kara and Ms P, with all of the necessary preparation beforehand and support afterwards, could take place this Friday, 28 August 2020.

50. The orders made on 26 August 2020 require that initial telephone contact to occur before 4:00pm on Friday, 28 August 2020. In addition, the orders require the plaintiffs to inform both Kara and Ms P by no later than 4:00pm on the following Monday what is proposed for future contact between Kara and Ms P, including details of the proposed nature and frequency of contact. All parties have liberty to apply on 24 hours’ notice. If Kara or Ms P are dissatisfied with the plaintiffs’ proposal for future contact, it will be open to them to exercise that liberty to apply.

Reasons for orders concerning ongoing monitoring and review by the Court

51. Ongoing monitoring and review by the Court is necessary in order to ensure that the terms of the orders continue to address, or are varied to address, what is necessary for the protection of Kara as her needs and circumstances evolve during the course of her treatment.

52. The hearing on 26 August 2020 was the first stage of that ongoing monitoring and review.

53. Further review is appropriate in approximately two and half weeks’ time, by which stage it is currently expected that the medical practitioners treating Kara will have had an opportunity to undertake formal psychiatric and cognitive assessments of Kara, in addition to certain other assessments.

54. Ms Kelso submitted, and I accept, that it is important that such assessments include an assessment of Kara’s capacity to consent to medical treatment.

55. All of these assessments will provide important information that will be relevant to identifying how Kara’s ongoing needs can be met after she is discharged from the hospital facility in approximately four weeks’ time.

56. Ms Kelso emphasised, and I accept, the importance of the plaintiffs commencing this detailed planning for Kara’s discharge from the facility as a matter of urgency. The following opinions expressed by Dr Milne in her report dated 24 August 2020 give some indication of the complexity of this task:

“It is imperative that [Kara] have a safe place to live post discharge with access to a supportive multidisciplinary team with a strong cultural component to her care. She is at high risk of relapse in the short-medium term post discharge …

…

Health continues to recommend that after this inpatient admission, [Kara] continue to be provided a safe and secure placement to ensure she can have ongoing therapy, engage in meaningful and safe relationships, engage in trauma informed care, education or workplace training, and drug and alcohol relapse prevention. An inpatient admission is a short term plan to provide medical and mental health assessment, management planning and stability to help set up the community placement for successful after care treatment.”

57. Ms Kelso also submitted, and I accept, that it is important that the plaintiffs consult with Kara and Ms P concerning Kara’s placement and care after her discharge from the hospital. As referred to at [17] of the first judgment, Ms P has parental responsibility for Kara in relation to the culture and religion.

58. The orders made on 26 August 2020 require the plaintiffs provide a report or other evidence before the next hearing on 11 September 2020 addressing a range of specific matters that will be relevant to the Court’s consideration of whether the terms of the orders, and the manner in which the orders are operating, are consistent with the fundamental purpose of the protective jurisdiction exercised in relation to Kara. The matters to be addressed in that report or evidence include detailed information about potential post-discharge placements for Kara.

Reasons for orders relating to Kara’s location

59. The plaintiffs informed the Court at the hearing on 26 August 2020 that they no longer saw any need to withhold from Ms P information about Kara’s precise location.

60. Order 7 made on 26 August 2020 discharges the orders made on 12 August 2020 under the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to Kara’s location.

61. Orders 7 to 11 made on 26 August 2020 reflect the fact that Kara’s location need not be redacted in copies of pleadings, affidavits and exhibits served on Ms P as the second defendant in this proceeding. However, the plaintiffs wish to maintain redactions over certain personal details of carers, and the orders permit the plaintiffs additional time to identify those redactions and to make any necessary application.

Reasons for orders relating to suppression and non-publication of Kara’s identity

62. The effect of orders 4 to 6 made on 26 August 2020 is to replace the orders made on 12 August 2020 under the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to Kara’s identity with orders made under that Act that operate for a specified time period rather than until further order: DRJ v Commissioner of Victims Rights [2020] NSWCA 136. At this stage, the period specified is until 30 September 2020 while the parties take time to consider an appropriate longer period, having regard to the provisions of s 105 of the Children and Young Persons (Care and Protection) Act. The period for which orders 5 and 6 operate will therefore need to be revisited when the matter is next before the Court on 11 September 2020.

**********

ANNEXURE A

The Court notes:

1. that the orders made on 12 August 2020 for the first defendant to be known in this proceeding by the pseudonym “Kara” and for the second defendant to be known in this proceeding by the pseudonym “Ms P” continue to apply.

2. the affidavit of Hannah Benjamin affirmed on 25 August 2020 and Exhibit HB-2 to that affidavit.

3. the submissions made orally on behalf of the plaintiffs and the first defendant and by the second defendant at the hearing on 26 August 2020.

The Court orders that:

4. Orders 9 and 10 made at 12.50pm on 12 August 2020, being orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to the identity of the first defendant, are discharged with immediate effect.

5. That, until 30 September 2020, there be no publication or disclosure that would identify, or tend to identify, “Kara”, except for the purpose of:

1. the proper conduct of these proceedings;

2. any communication with NSW Police, NSW Ambulance and NSW Health services regarding Kara’s safety, well-being or any criminal investigation in relation to Kara;

3. an application by Kara’s legal representative seeking bail or to vary bail conditions and for such an application to be heard and determined;

4. any review of Kara by the Mental Health Tribunal; and

5. an application to the New South Wales Civil and Administrative Decisions Tribunal for a guardianship and/or financial management order,

this order being made on the grounds specified in s 8(1)(a), (c), and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

6. That Order 5 applies throughout the Commonwealth.

7. Orders 6 and 7 made at 6.30pm on 12 August 2020, being orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to the location to which the first defendant has been taken in accordance with Order 9 of those orders, are discharged with immediate effect.

8. That by 4:00pm on 26 August 2020, the plaintiffs serve the unredacted Amended Summons and unredacted Amended Notice of Motion filed on 12 August 2020 on the Second Defendant.

9. That until further order, service of the unredacted Affidavit of Hannah Benjamin affirmed on 11 August 2020 and Exhibit 1, the unredacted Affidavit of Hannah Benjamin affirmed on 25 August 2020 and Exhibit HB-2 and on the second defendant, be dispensed with.

10. That the plaintiffs file and serve any application relating to service of the unredacted documents referred to in Order 9 upon the second defendant, and any evidence in support of such application, by close of business on 7 September 2020.

11. That, if the plaintiffs do not file and serve any application relating referred to in Order 10 above by close of business on 7 September 2020, the plaintiffs are to serve unredacted copies of the affidavits and exhibits referred to in order 9 above by close of business on 8 September 2020.

12. That the plaintiffs arrange for Kara to have telephone contact with the second defendant by no later than 4:00pm on 28 August 2020.

13. That the plaintiffs inform Kara and the second defendant by no later than 4:00pm on 31 August 2020 about:

1. the proposed frequency of further telephone contact between Kara and the second defendant during Kara’s stay in her current placement; and

2. whether the plaintiffs propose to arrange in person contact between Kara and the second defendant during Kara’s stay in her current placement and, if so, the proposed timing of the initial in person contact and proposed frequency of such contact thereafter.

14. That the plaintiffs file and serve a report or evidence, on or before close of business on 8 September 2020, concerning Kara's progress including:

1. information in relation to Kara's progress in treatment and recommendations for further treatment;

2. information as to any psychiatric, cognitive or other medical assessments conducted (including a copy of any relevant reports), including an assessment of Kara’s capacity to consent to medical treatment;

3. information in relation to plans for Kara's post-discharge placement, including information identifying:

1. the location of potential placements;

2. the nature and level of support services available for Kara at each such potential placement;

3. an assessment of the suitability of each such potential placement to meet Kara’s needs, as identified in the information referred to in (a) and (b) above; and

4. the issues raised in, and the outcome of, consultation between the plaintiffs, Kara and the second defendant in relation to potential placements.

4. information in relation to any use of reasonable force or restraints on Kara in accordance with Order 11 of orders made 12 August 2020, including the frequency, type and reason for such use;

5. information as to the nature and frequency of contact between Kara and family members and other persons with whom Kara has a cultural connection during the course of her treatment, including any recommendations from Kara's treating practitioners in relation to such contact for the remaining course of treatment; and

6. information in regard to how Kara's cultural needs will be met in the short and long term.

15. That the parties have liberty to apply on 24 hours’ notice.

16. That the proceedings be adjourned to 9:00am on 11 September 2020 before Williams J.

17. The orders made today be entered forthwith.

The Court further notes:

18. In relation to Order 5 above, that the plaintiffs are to confer with the defendants prior to the hearing on 11 September 2020 concerning to suitable time period for which Order 5 should operate, having regard to the provisions of s 105(1AA) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

19. In relation to Order 9 above, that:

1. the first defendant has no objection to the plaintiffs serving on the second defendant unredacted copies of the affidavits referred to in Order 9;

2. the plaintiffs have served on the second defendant copies of those affidavits in which the location of the first defendant is not redacted; and

3. the purpose of order 9 is to allow further time for the plaintiffs to identify the scope of any redactions that the plaintiffs seek to maintain in order to keep confidential personal details of officers of the plaintiffs and carers of the first defendant and information of a similar nature.

Decision last updated: 27 August 2020