Re Kara (No 5) - [2020] NSWSC 1462

Supreme Court

New South Wales

Medium Neutral Citation: Re Kara (No 5) [2020] NSWSC 1462
Hearing dates: 21 October 2020
Date of orders: 21 October 2020
Decision date: 21 October 2020
Jurisdiction: Equity
Before: Williams J
Decision:
Continuation of previous orders authorising 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 previously made authorising the confinement of the young person to secure premises outside the medical facility after discharge from 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 – where young person has frequently absconded from the secure premises – whether appropriate to continue the previous orders – appropriate to continue previous orders subject to ongoing review by the Court

Cases Cited:
Re Kara [2020] NSWSC 1083
Re Kara (No 2) [2020] NSWSC 1148
Re Kara (No 3) [2020] NSWSC 1292
Re Kara (No 4) (Supreme Court of New South Wales, Rees J, 16 October 2020)

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)
No appearance for Second Defendant

File Number(s): 2020/235191
Publication restriction: On 22 September 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

This proceeding concerns a young person, known by the pseudonym “Kara”, who is presently 16 years old.
These reasons relate to orders that I made earlier today, 21 October 2020. 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), 26 August 2020 (Re Kara (No 2) [2020] NSWSC 1148 – the second judgment), 22 September 2020 (Re Kara (No 3) [2020] NSWSC 1292 – the third judgment) and the ex tempore reasons for judgment of Rees J dated 16 October 2020 (Re Kara (No 4)

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 5)

Details

AGLC: Re Kara (No 5) [2020] NSWSC 1462
Case: [2020] NSWSC 1462
Decision Date: 21 October 2020

CaseChat Overview and Summary

In this case, the Court was asked to determine whether to continue with previously made orders that authorised the medical treatment and confinement of a young person under the parental responsibility of the Minister, except for cultural and religious matters. The young person had previously been authorised to be treated as an inpatient in a medical facility and then, upon discharge, to be confined to secure premises outside the facility to continue receiving outpatient treatment, rehabilitation, and recovery, and to protect the young person from risk to their safety. The young person had frequently absconded from the secure premises, leading to the question of whether the previous orders should continue.

The legal issue before the Court was whether it was appropriate to continue with the previous orders given the young person's history of absconding. The Court had to consider the welfare of the young person and whether the previous orders were still in the best interest of the young person. The Court also had to consider the need to protect the young person from risk to their safety and the need for ongoing medical treatment and rehabilitation.

The Court determined that it was appropriate to continue the previous orders subject to ongoing review by the Court. The Court found that the previous orders were in the best interest of the young person, and that the need for ongoing medical treatment and rehabilitation outweighed the risk of the young person absconding. The Court also found that the need to protect the young person from risk to their safety was still present and that the previous orders were necessary to achieve that goal. The Court ordered that the previous orders be continued subject to ongoing review by the Court.

The Court's decision was that the previous orders should continue subject to ongoing review by the Court. This decision was made in the best interest of the young person, taking into account the need for ongoing medical treatment and rehabilitation, the need to protect the young person from risk to their safety, and the young person's history of absconding. The Court's decision provides a balance between the need for ongoing medical treatment and rehabilitation and the need to protect the young person from risk to their safety.

Orders