Re Kara (No 6)

[2020] NSWSC 1857

Supreme Court

New South Wales

Medium Neutral Citation:

Re Kara (No 6) [2020] NSWSC 1857

Hearing dates:

11 and 17 December 2020

Date of orders:

17 December 2020

Decision date:

17 December 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 for the protective purposes identified in those orders.

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 pending the plaintiffs arranging a more suitable placement and otherwise subject to ongoing review by the Court

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 135A, 136

Civil Procedure Act 2005 (NSW) s 14

Uniform Civil Procedure Rules 2005 (NSW) r 7.14

Cases Cited:

GR v Department of Communities & Justice [2020] NSWSC 1622

P v NSW Trustee and Guardian [2015] NSWSC 579

Re Anita [2015] NSWSC 312

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)

Re Kara (No 5) [2020] NSWSC 1462

Re Kara [2020] NSWSC 1083

Re Sally [2011] NSWSC 1696

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) (on 11 December 2020 only)

Representation:

Counsel:
Ms K Shea (First and Second Plaintiffs)
Ms D Ward (Instructed by Independent Legal Representative for the First Defendant) on 11 December 2020; Ms K Kelso (Independent Legal Representative for Frist Defendant) on 17 December 2020

Solicitors:
NSW Crown Solicitor’s Office (First and Second Plaintiffs)
Ms K Kelso of Legal Aid NSW (Independent Legal Representative for the First Defendant)

Second Defendant appeared in person on 11 December 2020
No appearance for Second Defendant on 17 December 2020

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 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) and 22 September 2020 (Re Kara (No 3) [2020] NSWSC 1292 – the third judgment), 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) and my reasons for judgment dated 21 October 2020 (Re Kara (No 5) [2020] NSWSC 1462 – the fifth 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 that I made on 12 August 2020 for reasons explained in the first judgment. 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, for reasons explained in the third judgment, I made orders authorising Kara’s confinement at a secure placement in New South Wales 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. 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 on 16 October 2020, 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 remained missing from the placement at the time of the further review hearing before me on 21 October 2020. On that occasion, I made no change to the orders made on 22 September 2020.

10. The matter was listed before me on 11 December 2020 for ongoing review For reasons that will become apparent, a further short hearing was held on 17 December 2020 as part of that review.. On 11 December 2020, Ms Shea of counsel appeared for the plaintiffs. Ms Ward of counsel appeared for Kara, instructed by Ms Kelso of Legal Aid NSW, who is Kara’s independent legal representative. Kara’s mother, who is the second defendant in this proceeding, appeared in person. On 17 December, Ms Shea appeared for the plaintiffs, Ms Kelso appeared as Kara’s independent legal representative and there was no appearance by Kara’s mother.

11. These are my reasons for making no change to the orders made on 22 September 2020 and 16 October 2020 following the review hearings on 11 and 17 December 2020.

12. At the hearing on 11 December 2020, the plaintiffs read an affidavit of Ms Yvonne Rafaraci affirmed on 9 December 2020 and tendered a bundle of case notes, correspondence and other documents exhibited to that affidavit. Ms Rafaraci is a Manager Case Work employed with the Department of Communities and Justice and is responsible for supervising the Department’s casework in relation to Kara.

13. Kara’s mother tendered a letter dated 10 December 2020 addressed to the Court outlining her concerns for Kara and her reasons for opposing the continuation of the current orders authorising Kara’s confinement to the secure placement premises.

14. Ms Rafaraci’s affidavit and the documents exhibited to her affidavit reveal that Kara was located at her father’s home on 22 October 2020 (the day after the last hearing) and taken to hospital suffering symptoms of pneumonia. She then absconded from hospital the following day and was not able to be located until 29 October 2020.

15. Kara was returned to the secure placement on 29 October 2020, after first being taken to hospital for review. However, she absconded from the placement again on 30 October 2020 and remained absent until 11 November 2020.

16. On one occasion during that period of absence, Kara arrived at the home of her mother, who reported to KBH that Kara appeared to be affected by drugs. Her mother was unable to cope with Kara’s behaviour and called the police, but Kara left her mother’s home before the police arrived.

17. When police ultimately did locate Kara on 11 November 2020, she was taken again to hospital before being returned to the placement later that day.

18. Kara absconded from the secure placement again on numerous occasions after 11 November 2020 and stayed away for long periods.

19. On each occasion that she has absconded, Kara has either escaped from a vehicle transporting her between hospital and the secure placement premises or has used an item of furniture to stand on in order to jump over the fence at the secure premises. On each occasion that an item of furniture has been used for that purpose, Safe Places have removed the time from the home prior to Kara’s return. On one occasion, Kara charged at the Safe Places youth workers holding a table in front her, forcing them to move out of the way in order to avoid injury to themselves. She then ran to the fence with the table and used it to stand on and jump over the fence.

20. On each occasion that Kara has returned to the secure placement, she has been emotionally dysregulated and exhausted. Safe Places staff have allowed her to sleep in order to recover, and she has then absconded again before they have had a meaningful opportunity to engage with her.

21. In short, as at 11 December 2020 Kara had been present at the secure placement on only four nights since 20 October 2020. She had not returned to the placement at the time of the hearing on 11 December. At the hearing on 17 December 2020, I was informed that Kara was returned to the secure placement by the police late on 11 December 2020. She absconded again on 12 December and was returned to the placement by her mother on 15 December. She absconded again on 16 December 2020.

22. Ms Rafaraci’s affidavit details the educational and other plans that the plaintiffs have been developing, in conjunction with Safe Places and other stakeholders, for Kara in accordance with directions made by the Court on 21 October 2020. Regrettably, they have been unable to implement any of those plans with Kara because she simply has not been present at the placement.

23. Kara’s absence from the placement has also meant that she has missed taking the medication that she requires to address her medical conditions, and has not been participating in the psychology and other services that she requires to address her complex needs. Kara’s needs and medical conditions, and the medication and services required to address those needs and conditions, have been described at length in the third judgment.

24. Sadly, Kara has returned to using drugs during her absences from the secure placement. Ms Rafaraci deposed that Kara was located and recovered by police on 5 December 2020 at the home of a known drug dealer. The plaintiffs believe that this man has been sexually exploiting Kara in conjunction with supplying drugs to her. Kara has previously described him as her boyfriend and had expressed the view during her stay at the Saunders Unit that she wanted nothing further to do with him. When she was found at this man’s premises, the police returned Kara to the placement, and Safe Places then arranged for her to be taken to hospital for review. Kara absconded again whilst leaving the hospital later that day.

25. Kara’s mother, who appeared and made submissions at the hearing on 11 December 2020, informed the Court that Kara has been using drugs during her absences from the secure placement, although she has not been doing so every day. Kara has told her mother that she uses drugs in order to stop feeling bad about herself.

26. The plaintiffs, Kara’s independent legal representative and Kara’s mother agree that the secure placement operated by Safe Places is not meeting Kara’s needs because she has not been successfully confined there. Regrettably, it appears that during the periods in which she is absent from the placement, Kara is again exposing herself to the same risks that led to the grave fears for her safety which were the basis for the extraordinary orders made on 12 August 2020 authorising her confinement and treatment at the Sydney Children’s Hospital and the subsequent orders authorising her confinement at the secure placement to facilitate ongoing treatment and support for her complex needs. As I understand the evidence, it is for this reason that Ms Rafaraci deposed that the secure placement is “unable to protect Kara from risk to her safety”.

27. The plaintiffs nevertheless submit that the previous orders authorising Kara’s confinement at the secure placement premises should continue. They recognise that an alternative approach to meeting Kara’s needs must be identified, and seek to continue the present orders pending an alternative placement becoming available.

28. The plaintiffs have explored with Kara’s treating team at the Sydney Children’s Hospital whether Kara could again be admitted as an inpatient at the Saunders Unit as occurred in August and September this year. The plaintiffs were advised that the Saunders Unit would be unable to support Kara as an inpatient, and that adult hospitals were better equipped “to deal with the presentation of police and Kara”. However, the treating team remain willing and able to treat and support Kara as an outpatient, as had been planned when she was discharged from the Saunders Unit to the secure placement.

29. Other options for Kara such as voluntary participation in drug and alcohol rehabilitation programs were explored or tried for Kara before the commencement of this proceeding, and were not successful. In any event, Kara’s needs as identified during her confinement at the Sydney Children’s Hospital are far more extensive than drug and alcohol rehabilitation.

30. The alternative placement that the plaintiffs have in mind for Kara is a placement in the Sherwood House program, which provides more secure confinement. Sherwood House has committed to offer a placement to Kara at the next available vacancy. As presently advised, the plaintiffs expect a place at Sherwood House to become available for Kara in early January 2021.

31. I emphasise that the Court is not presently making any decision about whether orders should be made for Kara’s confinement at Sherwood House. The plaintiffs recognised that they would need to place a considerable amount of additional evidence before the Court in order for the Court to determine whether it would be appropriate to make such orders in the exercise of its parens patriae jurisdiction. However, the nature of alternative placements under consideration, and the time frames within which such placements may become available, are relevant factors for the Court to consider at this stage in determining whether to continue orders authorising Kara’s confinement at a placement that has so far been unable to meet her needs due to her determination to abscond and her success in doing so.

32. It is unusual that the Court is asked to continue orders authorising the confinement of a young person to a placement where it is acknowledged that the young person’s needs are not being met. At the hearing on 11 December 2020, I explored with the counsel for the plaintiffs whether there was some prospect that, until such time as a potential alternative placement becomes available for Kara, her needs might be better met if the confinement orders were not continued so that Kara had the ability to stay at the secure placement and avail herself of the support and care that can be provided by Safe Places workers and by her external treating practitioners, but was not subject to Court orders authorising the plaintiffs to compel her to stay there. I raised this because, as referred to in the fifth judgment, Kara has previously expressed frustration and distress about feeling “locked up” and has expressed a perception that she is being punished even though she has done nothing wrong. That perception demonstrates Kara’s lack of insight into her need for protection.

33. Counsel for the plaintiffs submitted that it would not be in Kara’s best interests or conducive to her protection and wellbeing to discharge the orders. The plaintiffs provided numerous different placements for Kara without confinement orders prior to the commencement of these proceedings, and this had not protected Kara from the extreme risks to her safety that had resulted in the commencement the proceedings. Kara had repeatedly been absent from those placements for long periods, during which she had used illicit substance and been exposed to many physical and psychological harms, as referred to in detail in the first judgment. Having regard to that history, counsel for the plaintiffs submitted that it was highly unlikely that discharging the confinement and recovery orders now would result in Kara being more willing to remain at the current placement premises and engage with the support and care available to her there. I accept those submissions.

34. Counsel instructed by Kara’s independent legal representative supported the continuation of the current orders authorising Kara’s confinement at the secure placement premises for the purposes specified in those orders on the basis that there is no other immediately available alternative and to discharge the orders now without an alternative regime in place wold be to effectively give up on Kara. Nobody wants to give up on her, and the plaintiffs are determined not to do so.

35. Kara’s mother, known in this proceeding by the pseudonym “Ms P”, opposed the continuation of the current orders authorising Kara’s confinement at the secure placement premises. At the hearing on 11 December 2020, Ms P submitted that Kara was bored at the secure placement and craved the company of young people her own age rather than the Safe Places youth workers. She submitted that Kara had begun expressing suicidal thoughts and exhibiting signs of an eating disorder since being confined to the secure placement premises. She submitted that Kara had told her of her determination not to stay at the secure placement premises, and has said that she will hurt one of the Safe Places workers if she has to return there. Based on her knowledge of what she described as Kara’s temper, Ms P fears that she will carry out this threat.

7. In her letter dated 10 December 2020, Ms P identified four drug and alcohol rehabilitation programs that she considered to be “culturally safe and age appropriate” for Kara:

1. Triple Care Farm Residential Rehabilitation – 12 Week Holistic Program.

2. Mac River Centre Residential Rehabilitation Program – 12 Week Program.

3. Junaa Buwa Centre for Youth Wellbeing – 12 Week Program.

4. Kedesh House – 9 Week Program.

37. I explored with Ms P why she considered that those programs would be suitable for Kara’s needs and why she considered that they would be culturally safe and age appropriate for Kara.

38. Ms P said that she had not made detailed inquiries about any of the four programs, but she understood that each of those programs had a lot more Aboriginal workers than Safe Places.

39. Ms P acknowledged that the Triple Care Farm was in fact not an option for Kara because participants are required not to smoke. Since being discharged from Sydney Children’s Hospital where she had withdrawn from many illicit substances and commenced the process of withdrawing from nicotine, Kara has returned to smoking cigarettes. The Court has previously heard evidence to the effect that the cigarettes were first provided to Kara by Ms P immediately after her discharge from the hospital. Kara’s ongoing smoking means that Triple Care Farm is not a realistic option for her, even if it were otherwise an appropriate program to address her needs. According to a further affidavit of Ms Rafaraci affirmed on 15 December 2020 and read at the hearing on 17 December 2020 (at which Ms P did not appear), the Junaa Buwa and Kedesh House programs are also strictly no smoking programs.

40. The more fundamental problem is that, as Ms P acknowledged and as Ms Rafaraci’s 15 December 2020 affidavit confirms, none of the four programs provide services beyond drug and alcohol rehabilitation. Kara’s needs are much more extensive and more complex than this, as described in detail in the third judgment. Ms P acknowledged that these programs would not meet all of Kara’s needs, but expressed the view that it was necessary for Kara to have help to address her drug and alcohol addiction before making efforts to address her other needs.

41. I respectfully disagree with Ms P’s view that Kara’s rehabilitation and support should be approached in such a staged manner. As recorded in the third judgment, Kara did withdraw from substances during her stay at the Sydney Children’s Hospital. This did not lead to her being amenable to engage with the other therapy, care and support made available to her. Rather, the evidence before the Court established that Kara has been determined to abscond from the moment that she was discharged from the Saunders Until and has thereby removed herself from the reach of the care, support and therapy arranged for her and has ultimately relapsed into drug use. That risk of relapse was identified be Kara’s treating practitioners in the Sydney Children’s Hospital and was one of the reasons why orders were made authorising Kara’s confinement at the secure placement premises for the purpose I have referred to above and described in detail in the orders made on 22 September 2020.

42. That behaviour is consistent with Kara’s diagnosis of Complex Trauma and Substance Use Disorder and her emotional dysregulation to which I have referred in the third judgment.

43. In her letter dated 10 December 2020 in which she advocated for Kara to participate in one of the four programs mentioned above as an alternative to continuation of the current secure placement with a view to potentially transitioning Kara to Sherwood House, Ms P also said:

“While [Kara] waits for a place to become available at one of these residential rehabilitation services, I feel she needs to be in a placement with an Aboriginal Community Controlled Organisation. I want this to be Kinchela Boys Home Aboriginal Corporation and support the program outline that has been developed for such a placement. I only want Aboriginal female support workers to be in a placement with [Kara] due to her sexual abuse experiences and for cultural reasons. This is both for daytime services provided to [Kara] and evening support. Kinchela Boys Homes Aboriginal Corporation will also be able to assist my daughter in accessing the National Disability Insurance Scheme due to her most recent diagnoses of an intellectual disability and psychosocial disabilities and provide services to her as part of her recovery as they are a registered NDIS Service.”

44. Attached to Ms P’s letter was a seven day timetable headed “Proposed placement planner for [Kara] – Kinchela Boys Home Aboriginal Corporation”. The timetable sets out various daily activities, including external medical appointments and drug & alcohol support.

45. Reflecting on the evidence as a whole after the conclusion of the hearing on 11 December 2020, it seemed to me that this possibility had not been explored adequately during the hearing. I therefore made directions in chambers for the plaintiffs to make inquiries of KBH concerning their capacity and willingness to provide a placement for Kara that would meet her complex needs and to provide an affidavit to the Court about those matters. I also granted liberty to Kara and Ms P to provide evidence about those matters if they wished to do so. I relisted the matter for further review on 17 December 2020 once that evidence was available.

46. The further affidavit of Ms Rafaraci affirmed on 15 December 2020 was read at the further hearing on 17 December 2020. The independent legal representative for Kara appeared but did not adduce any further evidence concerning KBH. Ms P was notified of the hearing but did not appear.

47. Ms Rafaraci’s further evidence explains that KBH is not a designated agency accredited by the Children’s Guardian to provide statutory out of home care to young persons. Accordingly, the Children and Young Persons (Care and Protection) Act 1998 (NSW) precludes orders that would sanction or have the practical effect of placing Kara in the care of KBH for a period of more than 14 days: see ss 135A(1)(b), 135A(3)(a) and 136 of that Act.

48. It is important, as Ms P has pointed out, that Kara should have adequate cultural support in any placement, whether that be a continuation of the current arrangements or some alternative placement.

49. As referred to in the fifth judgment, the plaintiffs and Safe Places have facilitated KBH providing ongoing cultural support for Kara at the secure placement premises (to the extent that Kara has been at the placement). Kara and her family had an established connection with KBH well before these proceedings were commenced, and KBH also provided support to Kara during her time as an inpatient at the Saunders Unit. Kara has also received cultural support from an Aboriginal youth worker who is part of the Safe Places team caring for Kara at the secure placement premises.

50. Ms Rafaraci described efforts made by the plaintiffs in 2019 to engage additional Aboriginal support services to work with Kara, namely Tribunal Warrior, ID Know Yourself, Ngadhi Family Services and Kurranulla Aboriginal Corporation. In particular, the plaintiffs facilitated four meetings with Tribunal Warrior and ID Know Yourself between June 2019 and November 2019 in an attempt to engage Kara with these services. Ms Rafaraci deposed that the success of both programs is dependent on the participants’ motivation and independence to engage with the program, and that both programs had been unable to engage Kara. I did not understand Ms Rafaraci’s evidence to be an indication that the plaintiffs had ruled out further attempts to engage Kara with these Aboriginal support services. However, it is practically impossible for them to do so whilst Kara is absent from her placement and the plaintiffs are unable to locate her.

51. I have carefully considered the grounds of Ms P’s opposition to the continuation of the current orders, even as an interim measure. Regrettably, the alternatives suggested by Ms P are unrealistic and unsuitable for Kara’s needs for the reasons I have already explained above.

52. I have taken into account that Ms P informed the Court at the hearing on 11 December 2020, that, since being placed at the secure premises operated by Safe Places, Kara has expressed suicidal thoughts and has displayed eating patterns that Ms P considers are suggestive of an eating disorder.

53. The information presently available to the Court does not warrant the conclusion that there is a casual connection between the current placement on the one hand and Kara’s suicidal thoughts and eating patterns as reported by Ms P on the other hand. First, Kara has been largely absent from the placement. Second, Kara was suffering from suicidal thoughts prior to the commencement of these proceedings as recorded in the medical evidence summarised in the first judgment, especially at [31]. Any suicidal thoughts that she is presently experiencing are just as likely to be associated with her refusal to remain at the secure placement and her relapse into her previous pattern of behaviours.

54. At the hearing on 17 December 2020, the plaintiffs undertook to inform Safe Places of Ms P’s report that Kara had expressed suicidal thoughts and displayed behaviours associated with food that may be suggestive of an eating disorder. Safe Places will need to take these matters into account in their care of Kara to the extent that she is present at the secure premises. The independent legal representative for Kara submitted that Safe Places has an established track record of proactively identifying when Kara needs medical assessment or care and ensuring that she receives it. I accept that submission. Some of these instances have been referred to earlier in these reasons. I have no reason to doubt Safe Places’ ability to monitor Kara for signs of psychological distress or disorder and to take appropriate action. Kara is more likely to receive help that she needs with any suicidal thoughts if she is in the care of Safe Places at the secure placement. Remaining at the placement and attending her regular appointments with her treating team at the Sydney Children’s Hospital would be a good start.

55. For all of the reasons above, I decided that the continuation of the current orders is necessary for the protection of Kara and the promotion of her welfare during the period in which the plaintiffs make arrangements for an alternative placement with higher levels of security that the events of the past few months have revealed to be necessary to give the therapeutic program devised for Kara a chance to begin to work. Whilst the current placement is not meeting Kara’s needs due to her determination to abscond, the continuation of the orders at least gives the plaintiffs and Safe Places the ability to attempt to confine Kara for the protective purposes recorded in the orders made on 22 September 2020. As I have said earlier, the plaintiffs do not wish to give up on Kara.

Independent legal representation for Kara and dispensation with tutor

56. For completeness, I set out briefly my reasons for making orders on 11 December 2020 confirming the role of Kara’s separate legal representative as an independent legal representative and dispensing with the requirement for a tutor to be appointed for Kara.

57. An order was made on 12 August 2020 for Kara to be separately represented in these proceedings. Kara was represented on that date, and has continued to be represented, by Ms Kelso of Legal Aid NSW.

58. At each hearing in this matter, Ms Kelso has diligently tested evidence adduced by the plaintiffs, raised legitimate questions about whether aspects of certain plans made for the plaintiffs for Kara were in her best interests or whether a different approach would be more aligned with her best interests, and pressed for detailed plans and action concerning Kara’s education and re-integration into the community including interaction with her age peers.

59. Ms Kelso has ensured that Kara’s views have been put before the Court by relaying Kara’s views as communicated to Ms Kelso, tendering notes written by Kara expressing her views and, on one occasion, appearing by audio visual link from the hospital with Kara so that Kara could speak directly to the Court.

60. Ms Kelso’s submissions to the Court as to the orders that should or should not be made on each occasion have been the product of her independent judgment as to what is in Kara’s best interests, taking into account Kara’s views and all of the evidence. That is the role of an independent legal representative: Re Sally [2011] NSWSC 1696 at [11]-[12]; Re Anita [2015] NSWSC 312 at [56]-[58], [62]-[65].

61. The need to distinguish between an independent legal representative and a direct legal representative in the order made on 12 August 2020 was regrettably overlooked.

62. On 26 November 2020, my Associate communicated with the parties about this and advised them of my intention to make an order in the exercise of the Court’s parens patriae jurisdiction appointing Ms Kelso of Legal Aid NSW as independent legal representative for Kara nunc pro tunc, subject to hearing from the parties: Re Sally [2011] NSWSC 1696 at [6].

63. The plaintiffs supported that order at the hearing on 11 December 2020. Ms P opposed the order on two grounds.

64. First, Ms P informed the Court that Kara would prefer to be represented by the Aboriginal Legal Service. Counsel instructed by Ms Kelso informed the Court that Legal Aid NSW had made inquiries with the Aboriginal Legal Service and had been informed that they are unable to accept instructions to act as separate representative for Kara in these proceedings due to a conflict of interest.

65. Second, Ms P submitted that Ms Kelso had not always informed the Court of Kara’s views, and had not spent enough time with Kara to understand her views. I reject that submission. I have referred above to the steps taken by Ms Kelso to ensure that Kara’s voice has been heard by the Court. Ms P has also been present at each hearing, save for the hearings on 21 October 2020 and 17 December 2020 of which she was notified and which she was entitled to attend, and Ms P been given very wide scope to address the Court. She has been able to put before the Court any views expressed by Kara, and she has done so on several occasions. I do not consider that any views of Kara expressed through Ms P have been inconsistent with the matters already brought to the Court’s attention by Ms Kelso. The only exception to that is that at the hearing on 11 December 2020, Ms P informed the Court that Kara had begun expressing suicidal thoughts and displaying symptoms of an eating disorder. However, it is unsurprising that Ms Kelso had not been able to ascertain this information from Kara. Kara has absconded from and been absent from the secure placement for most of the period since she was discharged from Sydney Children’s Hospital. This has inevitably made it impossible for Ms Kelso to speak with Kara and ascertain her views, her state of mind and her condition.

66. In those circumstances, and having regard to the manner in which Ms Kelso has performed the role of independent legal representative to date, I considered that it was appropriate to make an order that Ms Kelso’s appointment as separate representative for Kara on 12 August 2020 operate as an appointment as independent legal representative nunc pro tunc. An order to that effect was made on 11 December 2020.

67. My Associate also advised the parties on 26 November 2020 that I wished to hear from them as to whether the appointment of Ms Kelso as independent legal representative should continue beyond today, or whether a direct legal representative should be appointed for Kara.

68. Unlike an independent legal representative, a direct legal representative is required to act on instructions. The question whether a young person is more appropriately represented by an independent legal representative or a direct legal representative turns on whether the young person has the capacity to give instructions: Sally [2011] NSWSC 1696 at [12]; Re Anita [2015] NSWSC 312 at [62]-[65].

69. The capacity to give instructions to a legal representative requires the young person to have the insight and understanding of their circumstances and the risks to themselves that have given rise to the application to the Court for orders in the exercise of its parens patriae jurisdiction, to provide instructions and information to the legal representative sufficient to enable the representative to advise appropriately, and to understand that advice and to act on it in making decisions and providing instructions to the legal representative in the protective proceeding: GR v Department of Communities & Justice [2020] NSWSC 1622 at [81]-[84].

70. As Robb J observed in Re Anita [2015] NSWSC 312 at [69], it is difficult to conceive of cases where the young person has, at the time of the initial application to the Court, capacity to provide proper instructions to her separate legal representative, such that the representative could properly act as a direct legal representative. That is because the young person is frequently exhibiting behaviours that are placing them at great risk, and they are unlikely to have the insight required to recognise that risk to themselves and to provide instructions to a legal representative that would put the legal representative in a position to make submissions to the Court that were consistent with what might on any view be in the best interests of the young person.

71. That observation was certainly applicable in this case at the commencement of this proceeding. The medical evidence presented to the Court at that time was to the effect that Kara had “almost no control of her own decision making and behaviour”. [1]

    1. Report of Dr Milne dated 6 August 2020. Exhibited to the affidavit of Hannah Benjamin affirmed on 11 August 2020 at p148.

72. Kara was subsequently diagnosed with complex trauma, post traumatic stress disorder with dissociative symptoms, attention deficit hyperactivity disorder, substance abuse disorder, [2] and a mild intellectual impairment with moderately low adaptive functioning. [3] Whilst these diagnoses, by themselves, do not necessarily demonstrate that Kara is incapable of giving instructions, there is evidence that these conditions affect Kara in such a way that she is frequently “triggered” by not getting what she wants immediately, resulting in explosive behaviours. [4] In my opinion, the mild intellectual impairment with which Kara has been diagnosed, together with her explosive behaviour if her wishes are not met immediately, make it doubtful that she presently has the ability to understand the complex evidence before the Court concerning her needs, the medical and psychological care required to address them and the risks to herself if she does not receive that care, to weigh that evidence in the balance and provide informed instructions to a direct legal representative. Given her mild intellectual impairment and ADHD diagnosis, it is also unlikely that Kara presently has the capacity to listen to legal advice about these matters and to reflect upon it before providing instructions in response. That is particularly so in circumstances where her absence from the secure placement means that she has not been taking her ADHD medication

    2. Report of Dr Milne dated 6 August 2020, exhibited to the affidavit of Mariam Abrahams affirmed on 9 September 2020 at page 8.

    3. Report of Kelly Jeng (clinical neuropsychologist) dated 8 September 2020, exhibited t the affidavit of Mariam Abrahams affirmed 9 September 2020 at page 27.

    4. Report of Dr Milne dated 7 September 2020, exhibited to the affidavit of Mariam Abrahams affirmed on 9 September 2020 at page 10. Numerous instances of explosive behaviour trigged by Kara’s wishes not being met immediately are recorded in the case notes prepared by Sydney Children’s Hospital and Safe Places which have been exhibited to the affidavits read by the plaintiffs at the hearings in this matter since 12 August 2020.

56. I raised with the parties the question of whether Kara’s legal representation should be independent or direct legal representation going forward because Kara is almost 17 years of age and it is important for the parties and to the Court to continually assess whether Kara has responded to the care, medical treatment and therapy presently available to her to such an extent that she becomes capable of giving instructions: Re Anita [2015] NSWSC 312 at [66]-[70].

57. At the time I raised this with the parties, I did not know that Kara’s treatment and rehabilitation has essentially stalled since her discharge from the Sydney Children’s Hospital on 24 September 2020 due to her absence from the secure placement premises for most of that period. Nor was I aware that Kara had re-engaged in some of the extreme risk taking behaviour that had led to her confinement and treatment at the Sydney Children’s Hospital in the first place.

58. Accordingly, on the basis of the evidence referred to in [71]-[72] above and the events that have happened since Kara’s discharge from Sydney Children’s Hospital, I was not satisfied that Kara is presently capable of giving instructions to a legal representative. The appropriate course is for Ms Kelso of Legal Aid NSW to continue acting as Kara’s independent legal representative. The order made on 11 December 2020 appointing the independent legal representative will continue until further order.

59. At the commencement of these proceedings, Kara was made a party to the proceedings at my suggestion because it seemed to me that her interests were directly affected by any orders that would be made and that there should be no doubt about her ability to appeal such orders should she wish to do so. I accept that young persons are sometimes, but not always, made a party to proceedings in the Court’s parents patriae jurisdiction: Re Anita [2015] NSWSC 312 at [85]-[86]. I remain of the view that it is appropriate for Kara to be a party to this proceeding. No submission was made to the contrary.

60. At the time that I made the orders joining Kara to the proceeding as the first defendant, I overlooked that rule 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) required the appointment of a tutor for Kara, unless and order was made under s 14 of the Civil Procedure Act 2005 (NSW) dispensing with that requirement.

61. My Associate’s communication with the parties on 26 November 2020 informed them that I wished to hear from them on the question whether a tutor should be appointed for Kara or whether the requirement for a tutor should be dispensed with. Both counsel for the plaintiffs and counsel for Ms Kelso submitted that the requirement for a tutor should be dispensed with in this case, having regard to the fact that Kara has an independent legal representative. Ms P did not make any submissions about this issue.

62. I considered that, in circumstances where Kara’s interests are represented by the appointment of her independent legal representative and her views are conveyed to the Court by Kara herself, by her representative, and by Ms P, the appointment of a tutor would not achieve anything for Kara that is not already being achieved by her representative and by Ms P and would not otherwise assist the Court in the exercise of its parens patriae jurisdiction in this case. On the contrary, it would add a layer of communication in the process of Kara’s independent legal representative taking instructions that would make her less able to respond quickly to evolving circumstances in order to assist the Court by conveying Kara’s views and making submissions about what is in Kara’s best interests and what is necessary for her protection and welfare: P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]–[165]. I therefore decided to dispense with the appointment of a tutor for Kara and an order to that effect was made on 11 December 2020.

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Endnotes

Decision last updated: 17 December 2020