Re “Lee” - [2015] NSWSC 1276

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, Department Family and Community Services; Re “Lee” [2015] NSWSC 1276
Hearing dates: 2 September 2015
Date of orders: 02 September 2015
Decision date: 02 September 2015
Jurisdiction: Equity
Before: Brereton J
Decision:
Secure accommodation orders continued

Catchwords: FAMILY LAW AND CHILD WELFARE - exercise of parens patriae jurisdiction – where orders in place for parental responsibility and secure accommodation - continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs - importance of ability to detain and restrain child to ensure proper care - where guardianship order does not include powers to detain and restrain - where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders - unwillingness to discharge Court orders upon child's attaining 18 years of age until satisfied appropriate replacement orders in place.
Cases Cited: Re Thomas [2009] NSWSC 217
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:
Mr G Moore (first and second plaintiffs)
Ms S O’Reilly (child’s separate representative)
Solicitors:
Crown Solicitor (Director-General)
Child & Family Advocacy Service, Legal Aid NSW (child’s separate representative)

File Number(s): 2012/196324

Judgment (ex tempore)

The child “Lee”, the subject of these proceedings, attains 18 years of age on Friday 4, September 2015. She is subject to an order of the Children’s Court allocating parental responsibility to the Minister until she attains 18 years of age. Since 2012, she has also been the subject of proceedings in this Court, in which a secure accommodation order authorising the Secretary (or nominee) to detain her; to use whatever means are reasonably necessary, including reasonable force in doing so; and to restrain her in order to prevent her from injuring herself and others. Those orders were made in the parens patriae jurisdiction of this Court, as explained in Re Thomas [2009] NSWSC 217.
Of the several like cases that the Court has dealt with, Lee’s is probably the most difficult, intransigent and challenging. Although a well thought out and considered plan was proposed and approved, to support her transition to adulthood, by a move from Sherwood House to a placement at Aberdare, she continually absconded from that placement and exposed herself to serious risks of physical, sexual and psychological harm. More recently, an alternative placement has been found for her at Belmont and, so far as the evidence goes, it appears that she has frequented it somewhat more consistently than previously, although on balance she spends more time away from it than at it. Lee remains in grave danger and, as has been described in a carer’s report, appears to have very little sense of self, in that she has difficulty in recognising or accepting that she has been harmed or injured, and does not appear to recognise or care that she puts herself in harm's way.

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 1276
Case: [2015] NSWSC 1276
Decision Date: 02 September 2015

CaseChat Overview and Summary

The case of Re “Lee” involved a young individual, referred to as Lee, who was under the jurisdiction of the Family Court due to orders already in place concerning their parental responsibility and secure accommodation. As Lee approached their 18th birthday, the court was required to decide whether its jurisdiction, particularly its parens patriae authority, would continue to apply. The legal issues revolved around the Court's ability to maintain its orders past the age of majority if Lee was not yet capable of managing their own affairs independently. Additionally, the court had to determine whether the existing guardianship order, which did not include powers to detain and restrain, provided an adequate safety net as an alternative to the current orders.

The Family Court held that its jurisdiction remained viable despite Lee nearing adulthood, based on the necessity to ensure Lee’s proper care and protection. The Court underscored the importance of the ability to detain and restrain Lee to safeguard their welfare adequately. Given that the guardianship order did not encompass these powers and thus did not offer a sufficient alternative to the existing orders, the Court was unwilling to discharge the current orders upon Lee's 18th birthday unless it was satisfied that appropriate replacement orders were in place. The Court's reasoning was grounded in the necessity to protect Lee's welfare and ensure continuity of care until such time as suitable alternative arrangements could be confirmed.

The court’s decision reflected a cautious approach, prioritising Lee’s welfare above all else. By maintaining its jurisdiction and the current orders, the Court aimed to provide a seamless transition and ensure that Lee did not face a gap in care upon reaching adulthood. The Court's final orders included a directive that the existing orders would remain in effect until new, suitable orders could be established, thereby safeguarding Lee’s interests until a more permanent solution was confirmed.

Orders