Re Kara (No 3) - [2020] NSWSC 1292

Supreme Court

New South Wales

Medium Neutral Citation: Re Kara (No 3) [2020] NSWSC 1292
Hearing dates: 21 September 2020
Date of orders: 22 September 2020
Decision date: 22 September 2020
Jurisdiction: Equity
Before: Williams J
Decision:
The Court authorises the confinement of the young person known as “Kara” to secure premises located in New South Wales until further order of the Court, subject to that young person having access to and interacting with the community outside the secure premises to the extent determined from time to time by the Secretary of the Department of Communities and Justice (or his or her nominee) following consultation with the operator of the secure premises.

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 as an inpatient in a medical facility for the purposes of undertaking that treatment – where orders now sought to authorise the confinement of the young person to secure premises outside the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery and to protect the young person from risk to their safety – whether it is appropriate to make such orders – appropriate to make orders subject to ongoing review by the Court

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 135
Children and Young Persons (Care and Protection) Regulation 2012 (NSW), cl 48
Children’s Guardian Act 2019 (NSW), s 72

Cases Cited:
Re Kara [2020] NSWSC 1083
Re Kara (No 2) [2020] NSWSC 1148

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:
Ms K Shea (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: The orders made today (noting that those orders discharge earlier non-publication and suppression orders made on 11 September 2020) prohibit 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

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) and 26 August 2020 (Re Kara (No 2) [2020] NSWSC 1148 – the second judgment).
Since 12 August 2020, Kara (not her real name) has been confined at the Saunders Unit at the Sydney Children’s Hospital in Randwick for the purpose of medical treatment pursuant to orders made on 12 August 2020.
The matter has been under ongoing review by the Court since the making of those orders on 12 August 2020, and has been listed for…

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 Kara (No 3)

Details

AGLC: Re Kara (No 3) [2020] NSWSC 1292
Case: [2020] NSWSC 1292
Decision Date: 22 September 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re Kara (No 3) involved a dispute concerning an Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion. The matter required the Court to determine whether it was appropriate to make orders authorising the confinement of the young person to secure premises outside a medical facility for the purposes of continuing medical treatment as an outpatient, rehabilitation, recovery, and to protect the young person from risk to their safety. The previous orders had authorised medical treatment and confinement of the young person as an inpatient in a medical facility. The court was asked to decide if the proposed change in the young person's confinement and treatment plan was suitable and necessary.

The legal issues before the Court involved assessing the appropriateness of the proposed orders in the context of the young person's welfare and safety. The Court needed to consider whether the new confinement and treatment plan would be beneficial to the young person and whether it was necessary to protect them from risks to their safety. The Court also had to weigh the importance of the young person's cultural and religious considerations in determining the appropriateness of the orders. The Court had to balance the need for medical treatment and rehabilitation with the young person's rights and welfare.

The Court concluded that it was appropriate to make the orders sought by the Minister, subject to ongoing review. The Court found that the proposed change in the young person's confinement and treatment plan would be beneficial to the young person and necessary to protect them from risks to their safety. The Court considered the young person's cultural and religious considerations and determined that they could be accommodated within the proposed plan. The Court also emphasised the importance of ongoing review to ensure that the orders remained appropriate and in the best interests of the young person.

The Court made orders authorising the confinement of the young person to secure premises outside the medical facility for the purposes of continuing medical treatment as an outpatient, rehabilitation, recovery, and to protect the young person from risk to their safety, subject to ongoing review by the Court. The Court recognised the importance of the young person's cultural and religious considerations and sought to accommodate them within the proposed plan. The Court's decision was based on a careful assessment of the young person's welfare and safety and the need for appropriate medical treatment and rehabilitation.

Orders