Re: Mary - [2018] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation: Re: Mary [2018] NSWSC 678
Hearing dates: 09/05/2018
Date of orders: 09 May 2018
Decision date: 09 May 2018
Jurisdiction: Equity - Protective List
Before: McDougall J
Decision:
Make secure accommodation and ancillary orders.

Catchwords: CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where significant risk of harm to child if order not made - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery - orders made.
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:
S Christie (Plaintiffs)
Solicitors:
Crown Solicitor (Plaintiffs)

File Number(s): 2018/145755

Judgment (ex tempore – revised 9 may 2018)

HIS HONOUR: This is an application for secure accommodation orders in respect of a child who will be known as Mary. The Court's jurisdiction to make those orders is well recognised. It has been explained in a number of decisions of Judges of the Court. I see no point in rehashing what others and I have said.
Put at the most basic level, the Court is faced with two balancing considerations. One is that the making of the orders will have the effect of restricting very seriously the child's liberty and autonomy. The other is that, absent such orders, there is a very significant risk of harm. Those factors come into play in this case.
The child's history can only be described as sadly desolate. She is now 13, approaching 14. She was placed in out-of-home care in 2008, following a decision of the Children's Court on 29 August that year giving to the Minister parental responsibility for the child and her siblings. Since Mary was first placed in out-of-home care, she has moved no less than 29 times between 2008 and 2012, the moves being between long-term and respite placements. The evidence shows that the placements broke down due to various behaviours on Mary's part.
In July 2012, Mary was placed with CareSouth, out-of-home carers, in the Australian Capital Territory. That broke down again because of Mary's behaviours.
Subsequently, in October 2015, Mary moved to an intensive residential care home known as Binbeal in Bomaderry. Binbeal is managed by CareSouth. It involves restrictions on liberty, and attempted therapeutic treatment. Unfortunately, the move to Binbeal was not satisfactory. The records for the last half-year, from 30 September 2017 to date, show an enormous number of incidents in which Mary attempted to hit or otherwise assault staff, succeeded in doing so, verbally abused staff, absconded, caused significant property damage, engaged in sexualised and inappropriate behaviour, and otherwise behaved (not only towards staff but also towards members of the public and to police) in a totally unacceptable fashion.
In consequence of some of those activities, Mary has been charged. She is due to face Court on 10…

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: Mary

Details

AGLC: Re: Mary [2018] NSWSC 678
Case: [2018] NSWSC 678
Decision Date: 09 May 2018

CaseChat Overview and Summary

The case of Re: Mary involved the application for a secure accommodation order in relation to a child, Mary, under the parens patriae jurisdiction of the Family Court. The dispute arose from concerns about Mary's welfare and the necessity for a secure environment to address her needs effectively. The court had to balance the child's right to personal liberty against the significant risk of harm if such an order was not made.

The legal issues before the court included the appropriateness of issuing a secure accommodation order, the necessity of such an order given the potential harm to the child, and whether there were viable alternative options. The court was required to weigh the child's personal liberty against the significant risk of harm if no such order was made. It also had to consider the availability and effectiveness of alternative measures to address Mary's needs.

The court determined that the serious risk of harm to Mary if a secure accommodation order was not made outweighed the limitation on her personal liberty. The evidence presented indicated that there were no suitable alternative options available to provide the necessary support and protection for Mary. The proposed secure accommodation program offered a real prospect of stabilisation and recovery for the child. Therefore, the court found it appropriate to make the secure accommodation orders to safeguard Mary's welfare.

The Family Court made the secure accommodation orders for Mary, considering the significant risk of harm if such orders were not made, the lack of suitable alternatives, and the potential benefits of the proposed program. This decision aimed to ensure that Mary received the necessary support and protection to address her welfare needs effectively.

Orders