Re “Lee” - [2015] NSWSC 2144

Supreme Court

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) Minister for Family and Community Services (second plaintiff)
Representation:	Counsel: Ms M England (first and second plaintiffs) Ms S O’Reilly (solicitor) (child’s separate representative) Ms C King (public guardian) Solicitors: Crown Solicitor (first and second plaintiffs and public guardian) Child & Family Advocacy Service, Legal Aid NSW (child’s separate representative)
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…

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 “Lee”

Details

AGLC: Re “Lee” [2015] NSWSC 2144
Case: [2015] NSWSC 2144
Decision Date: 9 September 2015

CaseChat Overview and Summary

The case before the Family Court of Australia involved a child, referred to as "Lee," who was subject to a secure accommodation order and a recovery order under the Family Law Act 1975. The primary concern was whether the child could be discharged from secure accommodation and whether the recovery order would continue to apply after the child reached 18 years of age. The court had to determine the interplay between the Public Guardian's guardianship functions and its own parens patriae jurisdiction in these circumstances.

The legal issues addressed by the court included whether the child could be discharged from secure accommodation when there were no appropriate alternative arrangements in place, and whether the recovery order would remain in effect after the child attained the age of majority. The court also considered the obligations of the Public Guardian and the court's jurisdiction in providing for the welfare of the child. The court had to balance the need for the child's safety and well-being with the principle of minimal intervention in family matters.

The court held that the discharge of the secure accommodation order was contingent upon the existence of suitable alternative arrangements. It determined that the recovery order did not automatically cease upon the child reaching the age of 18. Instead, the order could continue if it was in the child's best interests and if the Public Guardian had taken steps to provide for the child's ongoing care. The court emphasised the importance of a collaborative approach between the Public Guardian and the court in ensuring the child's welfare. The decision underscored the need for a thorough assessment of the child's circumstances and the availability of appropriate support systems before any discharge could be approved.

The court ordered that the child could be discharged from secure accommodation only if suitable alternative arrangements were in place. It also ruled that the recovery order would continue beyond the child's 18th birthday, subject to review by the court. The Public Guardian was directed to take appropriate action to ensure the child's ongoing welfare, including making necessary arrangements for the child's care. The court's decision highlighted the importance of a coordinated approach in managing the child's welfare and ensuring that the child's rights and needs were adequately protected.

Orders