Re “Lee”
[2015] NSWSC 2144
•9 September 2015
|
New South Wales |
Case Name: | Secretary, Department Family and Community Services; Re “Lee” |
Medium Neutral Citation: | [2015] NSWSC 2144 |
Hearing Date(s): | 9 September 2015 |
Date of Orders: | 9 September 2015 |
Decision Date: | 9 September 2015 |
Jurisdiction: | Equity |
Before: | Brereton J |
Decision: | Recovery order discharged; leave given for evidence, orders and judgments to be delivered to Public Guardian. |
Catchwords: | FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – discharge of secure accommodation order – requirement to be satisfied that appropriate alternative structure or transitional arrangements in place – discharge of recovery order – whether recovery order survives child’s attaining 18 years of age – interaction of guardianship functions of Public Guardian and court’s parens patriae jurisdiction |
Category: | Procedural and other rulings |
Parties: | Secretary, Department of Family and Community Services (first plaintiff) |
Representation: | Counsel: |
File Number(s): | 2012/146324 |
JUDGMENT (EX TEMPORE)
HIS HONOUR: Lee turned 18 years of age on Friday 4 September 2015. Shortly before then, on 2 September 2015, I declined to discharge the secure accommodation order and extended it until today, essentially for the reasons that I was not satisfied that an adequate replacement safety net for Lee was in place, so that it was necessary for the Court to retain supervision of her care until a more satisfactory arrangement had been established. In particular, I was concerned that the guardianship order made on 22 July 2015 was inadequate to provide for Lee’s complex needs, as it conferred only very limited functions on the Public Guardian. I was also concerned that there appeared to have been little progress in the Public Guardian becoming familiar with Lee’s situation and arrangements and gaining an appreciation of the challenges she presented and the techniques that had been adopted for their management.
Since 2 September, engagement between the Secretary and the Public Guardian has commenced. The Public Guardian has now made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”) for additional functions to be conferred on the guardian – in particular, providing for functions in the areas of coercive accommodation, health care, restrictive practices and access. Should those functions be conferred on the Public Guardian, that will alleviate my concerns as to the inadequacies of the present arrangements.
The Secretary submits that the secured accommodation order should now be allowed to lapse. As I mentioned in the judgment of 2 September 2015 and earlier judgments, while the secure accommodation orders have, in a sense, underpinned Lee’s management, for the last six months or so they have not been enforced in the sense of routinely confining Lee to the accommodation in which she is placed, but she has been left more or less free to come and go. The strategy that has informed this is the view that she should be encouraged to view her accommodation as a safe place to which she can resort when she feels the need to do so, rather than a place of imprisonment. Thus, although on occasion the recovery order has been enforced in order to facilitate her removal from places of danger and congruent return to her accommodation, she has not been confined there.
Although there have, over the last nine months, been fluctuations in the extent to which Lee has maintained contact with her carers, including some relatively lengthy periods in which her whereabouts have been unknown and she has been considered to be in crisis, in more recent times she appears to be attending her accommodation voluntarily more frequently and she is now having more or less daily contact with her carers, who are of the view that at present she is the most settled she has ever been. In those circumstances, it is considered that discharging the secure accommodation order would convey to Lee as she turns 18 a recognition that she has made some progress. Although it seems to me that the availability of a coercive accommodation function in the future may well remain important as a last resort mechanism, it appears that that is likely to be in place within the next couple of weeks.
I was also concerned by the absence of any function in respect of medical treatment, including contraception. The argument is reasonably put that the forcible administration of medication for that purpose may well be destructive of progress in respect of encouraging her engagement with treating services. It may. On the other hand, as has been explained on previous occasions, the consequences for Lee of pregnancy and what may well be the removal of the child from her care at birth are equally confronting.
My concern was not that there was no provision for compulsory medication, but that there was no provision that would enable anyone to make any decision for Lee in that respect. It seems to me that the conferral on the Public Guardian of the health care functions contemplated will address that concern. I do not suggest that the decisions that will have to be made in that area will be easy for anyone, and the risks in either direction are considerable. But it does seem to me important that the issue not be ignored, and that the Guardian be empowered to make decisions in respect of Lee's medical treatment.
Family and Community Services have now made arrangements with the National Disability Insurance Scheme (“NDIS”) under which NDIS will continue the existing package of support for Lee at least for the next 12 months. This is said to be significant, unusual and even unique. It means that the present accommodation, present carers and present arrangements will remain in place and thus, very importantly, provide continuity for Lee. This support network will remain in place even if Lee chooses from time to time not to resort to it, so that she may, if or as and when she feels the need, return to it. I agree that this is an excellent transitional outcome.
There has been in force, since earlier this year (and indeed also on a previous occasion) a recovery order under the (CTH) Family Law Act 1975 authorising and requiring police officers and others to recover Lee and return her to the Secretary or the Secretary's delegate (in circumstances where the Minister has had parental responsibility). It is unnecessary to decide whether the recovery order, which under the Family Law Act remains in force for 12 months unless some lesser period is specified, survives Lee's attaining 18 years of age, although prima facie as it is founded on the notion of returning the child to a person with parental responsibility for the child, it is difficult to see how the order could continue to be supported where that legal parental responsibility has eclipsed. In any event, I am asked to discharge that order, which will sufficiently resolve that issue for present purposes. To the extent that the Public Guardian may require a similar power, the coercive accommodation function should address that.
The Public Guardian has sought guidance as to how the guardianship functions and the role of the Court will interact. At least as I presently understand the position, the (NSW) Guardianship Act 1987 is expressed in terms that it does not affect the parens patriae jurisdiction of the Court. That means, I think, that to the extent that this Court makes provision in respect of Lee's care, it would prevail over the guardianship function. But it does so only to the extent that the Court by order makes such provision, and only to the extent of any inconsistency. As I propose to discharge the secure accommodation order and the recovery order, there will be no subsisting orders in place concerning Lee's management, other than those of the Guardianship Division of NCAT. However, until I am satisfied that an appropriate guardianship order is in place, I do not propose entirely to vacate the field, but to keep Lee's management under the supervision of the Court. She is not a ward of the Court and she is not the subject of a committee of the person, but it is well established that in the parens patriae jurisdiction, the Court can make orders pertaining to the welfare of an incapable person without making them a ward or appointing a committee. At this stage, I am not making any such order, leaving it open to the Guardianship Division to make such orders as it is persuaded are appropriate, and to the Public Guardian to make decisions under the authority conferred by those orders. Accordingly, for the time being, I do not think that any difficulty of conflicting jurisdictions or orders is posed for the Public Guardian.
On the next occasion, if I am satisfied that the guardianship orders adequately provide for Lee's future management, these proceedings will probably be brought to an end without further orders being made. But having been responsible for Lee's welfare to this point, I do not think that the Court should simply terminate the orders on her attaining 18 years of age without being satisfied that an appropriate replacement structure and transitional arrangement are in place. It is for that reason, that at least for the time being, the Court will retain supervision of the arrangements in the sense that I have described.
The secure accommodation orders were extended up to and including today, and in the absence of any further order will lapse today.
The Court orders that:
(1)The recovery order made on 17 February 2015 be discharged with effect from today.
(2)The Secretary have leave to provide copies of all evidence, orders and judgments filed or given or made in these proceedings to the Public Guardian to be used as the Public Guardian sees fit in the interests of Lee.
(3)The proceedings be adjourned to 8 October 2015 at 9.45 before me.
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