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

1. This proceeding concerns a young person, known by the pseudonym “Kara”, who is presently 16 years old.

2. 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) (Supreme Court of New South Wales, Rees J, 16 October 2020) – the fourth judgment).

3. During the period from 12 August to 24 September 2020, Kara was confined at the Saunders Unit at the Sydney Children’s Hospital in Randwick for the purpose of medical treatment, including medically supervised withdrawal from illicit substances. Her confinement was authorised by orders made by this Court on 12 August 2020. The medical care, counselling and other services provided to Kara as an inpatient at Sydney Children’s Hospital are more fully described in the third judgment.

4. The matter has been under ongoing review by the Court since the making of those orders on 12 August 2020.

5. On 22 September 2020, I made orders authorising Kara’s confinement at a secure placement operated by Safe Places Community Services Ltd (Safe Places) for the purpose of ensuring that Kara receives ongoing multidisciplinary support and therapy, engages in meaningful and safe relationships, engages in trauma informed care, education or workplace training, sexual assault counselling, drug and alcohol counselling, as recommended by her treating practitioners at Sydney Children’s Hospital. My reasons for making those orders are set out in the third judgment. For present purposes, it is convenient to repeat [83]–[84] of the third judgment:

“83.   The proposed secure placement orders interfere with Kara’s liberty to a lesser extent than the orders pursuant to which she has been confined in the Saunders Unit. That is because the proposed secure placement order incorporates Kara having access to and interaction with the community during the placement. However, the extent of community access will be determined by the Secretary and that access will be facilitated by, and subject to the control and supervision of, the Safe Places case workers. The orders therefore still involve a serious interference with Kara’s liberty.

84.   On the basis of all of the medical evidence referred to in these reasons, I am satisfied that this interference is necessary for Kara’s protection, and for the promotion of her welfare, at this stage in her life. I am satisfied that the object of the confinement is to protect Kara from the high risk of relapse into substance misuse following her discharge from the Saunders Unit, to support Kara to begin to integrate and function safely in the community by providing her with ongoing psychological intervention, counselling and therapy to address her complex needs, and supporting her in her interactions with the community with a view to increasing her ability to interact independently with the community over time. I am also satisfied that the plaintiffs are taking care to ensure that the achievement of this object does not involving sacrificing Kara’s connection to her mother, her ability to rebuild connections with other family members, her connection to her culture or her wish to re-engage with education. Of course, this will require ongoing attention during the placement as Kara’s needs and circumstances evolve.”

6. As recorded by Rees J in the fourth judgment (at page 2):

“On 24 September 2020, Kara was discharged from hospital to the secure placement where she stayed for two nights before absconding. Kara was returned to the placement by the police on 27 September 2020, having been collected from her mother’s home. After spending a further seven nights at the placement, Kara absconded again. She returned after one night, having been picked up by the police at Newtown Railway Station. Kara stayed at the placement for one night before absconding for a third time and was returned to the placement after spending six nights away. Kara remained at the placement for one night only on 13 October 2020 before absconding for a fourth time, and at 3.45pm today, has yet to return. Earlier today, Kara appeared in Court by telephone link from her mother’s house and agreed to return to the placement by 2.00pm today.”

7. On the plaintiffs’ application, Rees J made recovery orders on the afternoon of 16 October 2020.

8. Kara returned voluntarily to the secure placement premises later that afternoon, with the assistance of her mother and a worker from Kinchella Boys Home Aboriginal Corporation (KBH).

9. However, Kara absconded from the placement again on 17 October 2020, and remains missing from the placement at the time of these reasons.

10. In summary, Kara has absconded from the placement on five occasions since 24 September 2020. She has stayed at the placement on 12 nights in total and has been away from the placement for 14 nights. On the last three occasions, she absconded after only returning to the placement for one night.

11. The matter was listed before me this morning for ongoing review. Ms Shea appeared for the plaintiffs. Ms Kelso, solicitor, appeared for Kara. There was no appearance for Kara’s mother, who is the second defendant. The Court was informed that the plaintiffs’ representatives had contacted Kara’s mother only yesterday and reminded her about the hearing today. I was satisfied that it was appropriate to proceed, on the basis that there will be liberty to apply as always in this matter and the second defendant may exercise that liberty if she wishes to raise any relevant matter with the Court.

12. The plaintiffs sought a continuation of orders 4, 5 and 6 made on 21 September 2020, orders for the provision of updating information to Kara, the second defendant and the Court and a further hearing in December for the purpose of the Court’s ongoing review of the matter.

13. The plaintiffs relied on an affidavit of Ms Yvonne Rafaraci affirmed on 15 October 2020 and a further affidavit of Ms Rafaraci affirmed on 20 October 2020, together with the material exhibited to those affidavits. Ms Rafaraci is a Manager Casework employed with the Department of Communities and Justice and is responsible for supervising the Department’s casework in relation to Kara.

14. Ms Kelso did not object to the reading of Ms Rafaraci’s affidavits and consented to the continuation of orders 4, 5 and 6 made on 21 September 2020. Ms Kelso raised several issues about aspects of Kara’s care in the secure placement, to which I will refer below.

15. The third judgment sets out in detail the medical evidence as at 21 September 2020 supporting Kara’s ongoing care in a secure placement environment. At the hearing this morning, there was no updating evidence from medical professionals and counsellors concerning Kara. However, this is explained by Ms Rafaraci’s evidence that, since being discharged from the Saunders Unit, Kara has attended only one drug and alcohol psychology session. Other medical and counselling appointments have been scheduled, but Kara has not attended or actively engaged with these appointments either because she has been absent from the placement or because she has not been willing to engage.

16. Having considered all of the evidence and applying the principles summarised in the first judgment at [62]–[67], I remain satisfied that Kara’s confinement at the secure placement premises, with such interaction with the community as is determined by the Secretary, Department of Communities and Justice from time to time after consultation with Safe Places, is necessary for her protection and the promotion of her welfare, at this stage of her life. Nothing has materially changed since the third judgment, save that:

1. Kara has absconded from the premises on five occasions. As a result, Kara’s interaction with the community so far has been limited to going on drives with Safe Places youth workers and attending one psychology appointment at CICADA. This is less interaction than Safe Places and the plaintiffs had hoped to achieve in the early stages of the placement, as referred to in the third judgment at [45]–[48]. I will return to this subject below;

2. whilst regular appointments have been arranged to provide the ongoing medical and psychological support for Kara referred to in [37] of the third judgment, Kara has participated in these appointments to a very limited extent, as I have already noted above. This is deeply regrettable. The notes exhibited to Ms Rafaraci’s affidavit of 20 October 2020 are replete with instances of Kara’s behaviour while she has been present at the placement reflecting emotional dysregulation. This underscores the importance of Kara receiving this ongoing support;

3. the behaviour support plan referred to in the third judgment at [40] has been prepared and all Safe Places staff working with Kara have received training in the implementation of that plan. The plan was prepared by Dr Fahey of QUOVUS, and there is ongoing consultation between Dr Fahey, Kara’s mother and representatives of KBH in relation to cultural considerations relevant the plan;

4. there has been no material progress made in relation to a plan for Kara’s education and social interaction with other young people. I will return to this subject below;

5. due to the lack of an education and social interaction plan, and due to the time that Kara has spent away from the secure placement premises, the range of Kara’s activities at the secure placement premises have been limited to baking, arts and crafts, loom bands, home visits from KBH, scrapbooking, positive affirmations, time in her sensory room at the secure placement premises, playing Nintendo Switch, and watching TV and movies. Whilst there is a weekly plan for Kara’s activities, it is not being followed due to Kara absconding and due to the current lack of arrangements for any formal educational activities;

6. as foreshadowed in the third judgment at [43], there is a boxing bag for Kara to engage in exercise at the secure placement premises, and a rowing machine is in the process of being sourced to provide an additional form of exercise. The plaintiffs and Safe Places have received advice about the extent to which it is beneficial for Kara to exercise from Dr Fahey of QUOVUS and Dr Hattle of CICADA. On the face of it, the two advices appear to be contradictory. The plaintiffs informed the Court at the hearing this morning that they and Safe Places are in the process of seeking clarification from Dr Fahey and Dr Hattle to ensure that Kara is encouraged and supported to exercise to an extent that promotes her physical and mental wellbeing;

7. Kara has continued to have contact with her mother by phone twice daily and in person three times per week for two hours on each occasion. The telephone contact is supervised by Safe Places youth workers and the in person contact is supervised by KBH for the reasons referred to in the third judgment at [50]. The frequency, nature and supervision of contact remains the subject of ongoing review and consideration by the plaintiffs; and

8. Kara has received cultural support from an Aboriginal youth worker who is part of the Safe Places team caring for Kara at the secure placement premises, and from KBH. Representatives of KBH visit Kara three times per week for three hours on each occasion. Two hours of each visit involves supervising and supporting Kara and her mother in their contact visits. In her affidavit affirmed on 20 October 2020, Ms Rafaraci deposed that additional cultural support activities, including a planned cultural art session and plans for Kara to join the “Tribal Warrior” program conducted at Redfern have not been able to proceed due to Kara absconding from the secure placement and being absent for long periods of time.

17. Kara has not attended school for many years, with the exception of some classes that she attended as an inpatient at the Saunders Unit. She has recently been diagnosed as having a mild intellectual disability as referred to in the third judgment at [9]. At the time I made the orders on 21 September 2020, the manner in which she was to be educated during the secure placement was still under consideration, but the plaintiffs were considering arranging a private tutoring service: see third judgment at [41].

18. Regrettably, the plans for Kara’s education do not appear to have been materially advanced. In her affidavit affirmed on 20 October 2020, Ms Rafaraci deposed that the Department caseworker allocated to Kara had contacted the Department of Education to see how they can support Kara and KBH has suggested engaging an Aboriginal tutor to provide support in planning for Kara’s educational needs. At the hearing this morning, the plaintiffs informed the Court that enquiries with the Department of Education were continuing and the private tutoring was one option under consideration.

19. I acknowledge that the development of a plan to address Kara’s educational needs is no small task, having regard to her age, the length of time for which she has not attended any formal education, her complex medical and psychological needs and mild intellectual disability referred to in the third judgment. However, I accept Ms Kelso’s submission concerning the importance of progressing such a plan for Kara, and the orders that I made this morning require the plaintiffs to provide a plan to the defendants within one month setting out the steps to be taken to meet Kara’s educational needs over the following three months. I considered that three months was the appropriate time frame for a plan, as it would most likely need to be reviewed after three months to take into account Kara’s progress under the plan.

20. When the orders were made on 21 September 2020, the plaintiffs intended that Kara would attend extracurricular activities at Sherwood House on a regular basis in order to provide her with a source of activities that she enjoys, in addition to opportunities for social interaction with other young persons: see third judgment at [42].

21. Ms Kelso and Kara’s mother subsequently raised with the plaintiffs concerns about Kara attending Sherwood House in light of very serious allegations made against security staff at Sherwood House concerning their behaviour towards young persons residing there.

22. By email dated 7 October 2020, the plaintiffs’ solicitor advised Ms Kelso and Kara’s mother that those allegations had been made in 2019 and had resulted in a staff member at Sherwood House being charged by NSW Police. I understand that criminal proceedings are ongoing. The email stated that the Department was unable to comment further because the matter was before the court. The only other information provided in the email was that the houses at Sherwood House had been fitted with CCTV as part of the Department’s commitment to the safety of children and young people. [1]

    1. Exhibit YR-2 to the affidavit of Yvonne Rafaraci affirmed on 20 October 2020, page 193.

23. At the hearing this morning, counsel for the plaintiffs informed the Court that the plaintiffs are seeking to have further discussions with Kara’s mother to provide more detailed information about steps that have been taken at Sherwood House to ensure the safety of children and young persons as a result of the allegations and criminal charges. The plaintiffs wish to explore the possibility of Kara attending Sherwood House for activities and social interaction once Kara’s mother has had an opportunity to receive and consider that further information. Ms Kelso submitted that it was regrettable that this consultation had not occurred before now. I agree, particularly as Dr Hattle’s email to Safe Places and the Department dated 6 October 2020 reports that Kara described feelings of loneliness and boredom in the secure placement. Dr Hattle specifically asked when Kara would be starting at Sherwood House to provide her with social interaction and mental stimulation.

24. The orders that I made this morning require the plaintiffs to provide a plan to the defendants within one month setting out the steps to be taken to meet Kara’s social needs over the following month. I considered that one month was the appropriate time frame for such a plan, as Kara’s social needs and how they are being met will evolve and will therefore need to be the subject of consideration on a reasonably regular basis. The manner which her social needs can reasonably be met will also depend to some extent on whether or not she continues to abscond from the secure placement premises. I turn to this subject now.

25. The risk of Kara absconding was a known risk at the time that the orders were made on 21 September 2020, as referred to in the third judgment at [34].

26. Ms Rafaraci’s affidavit of 20 October 2020 describes the modifications that Safe Places have made to the premises in recent weeks in order to prevent this occurring, including adding an additional lock to the bathroom window, placing the side gate lock higher so that it cannot be used as a foothold to jump over the gate, and installing a fence around the water tank so that the tank cannot be used to jump over the back fence. The casework notes exhibited to Ms Rafaraci’s affidavit describe how Kara absconded on 17 October 2020 by taking a bin outside to stand on in order to jump the fence.

17. Ms Kelso observed that the casework notes exhibited to Ms Rafaraci’s affidavit reveal that a Department of Communities and Justice caseworker was concerned on the first day of Kara’s residence at the placement that, although the height of the fence had been increased “it appeared to still be climbable”. At the hearing this morning, the plaintiffs informed the Court that the height of the fence had been increased to the maximum extent permitted by Council regulations and that Kara’s use of objects to stand on in order to climb the fence – such as the bin, most recently – was an issue that was to be addressed in Safe Places’ supervision of Kara in the premises.

18. Regrettably, Kara’s conduct in absconding and her absence from the premises for lengthy periods interferes with the ability of Safe Places to supervise the administration of the medication that has been prescribed to Kara to meet various medical needs, to build relationships and trust with Kara, and to establish a pattern of activities that will be enjoyable for Kara and start to build her self-esteem and facilitate the development of her life skills. The importance of these matters is referred to in the third judgment at [42] and by Rees J in the fourth judgment.

19. While there remains a heightened risk of Kara absconding, there is an understandable reluctance on the part of the plaintiffs and Safe Places to facilitate community interaction for Kara.

20. Ms Kelso informed the Court that Kara has told her that she does not wish to remain at the premises, that she feels bored with the range of activities available to her there and that she feels “locked up”. I note that Kara expressed similar views to Dr Hattle of CICADA on 6 October 2020, prompting Dr Hattle to inquire about opportunities for Kara to exercise and to interact with other young persons by attending Sherwood House. [2] As I have referred to above, whether or not Kara is to attend Sherwood House is to be the subject of further consultation between the plaintiffs, Kara and her mother.

    2. Exhibit YR-2 to the affidavit of Yvonne Rafaraci affirmed on 20 October 2020, page 192.

21. It seems to me that the plan that is to be developed to meet Kara’s educational needs and social needs will need to ensure that Kara is provided with additional activities to overcome these problems, and it is to be hoped that this will assist Kara’s behaviour to settle, give Kara a sense of well-being in the secure placement, reduce the risk of Kara absconding and, in turn, create the appropriate conditions for the plaintiffs and Safe Places to begin facilitating greater community interaction for Kara, including undertaking activities in which Kara has expressed interest (such as going to an animal shelter and a zoo). I note Dr Fahey’s recommendation in the behaviour support plan: [3]

“Community access is an important part of [Kara]’s program that needs to be carefully and consistently planned, coordinated, managed and monitored.

As she settles into her new placement, [Kara] should be supported to have regular access to the community with the support of carers. Opportunities for [Kara] to become familiar with her new community should be encouraged.”

3. Exhibit YR-2 to the affidavit of Yvonne Rafaraci affirmed on 20 October 2020, page 61.

Orders

32. For all of the above reasons, I made the following notations and orders at the conclusion of the hearing this morning:

1. Note that Orders 4, 5 and 6 made on 21 September 2020 continue.

2. Order that the plaintiffs provide to the first and second defendants the following information within 24 hours of it becoming available:

   (a)   any changes to arrangements for contact between Kara and the second defendant; and

   (b)   information as to Kara’s community access, schooling and activities, including fitness and Tribal Warrior.

(2A)   Without limiting Order 2, order that the plaintiffs provide to the first and second defendants by 21 November 2020:

(a)   a plan setting out the steps to meet Kara’s educational needs over the next three    months; and

(b)   a plan setting out the steps to meet Kara’s social needs over the next month.

1. Order that the plaintiffs file and serve a report or evidence, on or before 8 December 2020, concerning Kara's progress including:

   (a)   information in relation to her progress in the secure placement;

   (b)   information as to any psychiatric, cognitive or other medical assessments conducted (including a copy of any relevant reports);

   (c)   information in relation to any use of reasonable force on Kara, including the frequency, type and reason for such use;

   (d)   information as to contact between Kara and family members and other persons with whom Kara has a cultural connection during the course of her confinement;

   (e)   information regarding how Kara's cultural needs are being met;

   (f)    information as to her engagement with any counsellor;

   (g)   information as to her progress in engaging with relevant service providers;

   (h)   information as to her involvement in education;

   (i)    information as to her involvement in activities; and

   (j)    information as to her community access.

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

3. Order that the proceedings be adjourned to 8.30am on 11 December 2020 before Williams J for the purpose of further review.

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Endnotes

Decision last updated: 21 October 2020