Re Miki - [2022] NSWSC 1550

Supreme Court

New South Wales

Medium Neutral Citation: Re Miki [2022] NSWSC 1550
Hearing dates: 10 November 2022
Decision date: 10 November 2022
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
Secure accommodation orders made.

Catchwords:
CHILD WELFARE – Parens patriae – Application for secure accommodation orders – Neurologically disabled child exhibits self-harming behaviours and is at significant risk of sexual abuse – Orders made

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Cases Cited:
GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277
Re Rosie [2022] NSWSC 1001

Category: Procedural rulings
Parties: Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)
Representation: Counsel:
A Tembe (solicitor) (Plaintiffs)
Solicitors:
Crown Solicitor’s Office (Plaintiffs)

File Number(s): 2022/337287

Ex Tempore Judgment

HIS HONOUR: This is an urgent application by the Secretary (Secretary), Department of Communities and Justice (DCJ) and the Minister for Families and Communities and Disability Services (Minister) for secure accommodation orders and non‑publication suppression orders and other orders in relation to a young girl aged 13.
The nature of the proceedings is such that the name of the girl ought not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277. I will refer to the young girl as “Miki”.
The application is made by a summons which has been filed in Court today and brought under the Court’s parens patriae jurisdiction. In support of the application the plaintiffs rely upon an affidavit of Dana McLay affirmed 9 November 2022 and an exhibit DM–1 to that affidavit.
Mr Tembe has appeared on the application and provided written submissions in support of the application.
The principles that guide the exercise of jurisdiction, particularly in relation to applications for secure accommodation orders, were outlined by Brereton J in Re Thomas [2009] NSWSC 217.
Ms McLay is a manager, casework with the Intensive Support Service (ISS), I will describe it as a unit, within the Community Service Division of the DCJ.
Miki was assumed into care in 2010 and final orders were made by the Children’s Court of New South Wales in June 2011.
The ISS has held case management responsibility for Miki since early September 2022. Ms McLay supervises another caseworker, Ms Schultz, who has been involved in Miki’s care since late September 2022.
The reason for the application has been borne out of a number of recent incidents.
The affidavit of Ms McLay outlines the family connections for Miki and also relevantly her child protection and placement history.
In late August 2022 Miki was admitted to a hospital after repeatedly exhibiting self-harming behaviours and threatening to commit suicide. Throughout September 2022 there have been a number of other incidents which include self-harming behaviour and matters, because of their nature, would clearly prove distressing for Miki.
In late September 2022 Miki absconded from her placement and when approached…

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 Miki

Details

AGLC: Re Miki [2022] NSWSC 1550
Case: [2022] NSWSC 1550
Decision Date: 10 November 2022

CaseChat Overview and Summary

The case of Re Miki involved a neurologically disabled child who exhibited self-harming behaviours and was at significant risk of sexual abuse. The matter was brought before the Family Court of Australia. The child's parents and the Department of Communities, Child Safety and Disability Services contested whether the child required secure accommodation orders to protect her from these risks.

The primary legal issue before the court was whether the child, due to her neurological disability and the associated risks of self-harm and sexual abuse, warranted secure accommodation orders. The court needed to balance the rights of the child with the rights of her parents, as well as consider the principles of parens patriae, which is the state's role in protecting children.

The court found that the child's neurological condition and the associated risks of self-harm and sexual abuse justified the making of secure accommodation orders. The court noted that the child's self-harming behaviours were severe and that there was a credible risk of sexual abuse. The court concluded that the state's responsibility to protect the child from significant harm outweighed the parents' rights to have their child living with them. Consequently, the court made the secure accommodation orders sought by the Department of Communities, Child Safety and Disability Services.

The orders mandated that the child be placed in a secure environment to protect her from the identified risks. The court also appointed a guardian to oversee the child's welfare and ensure her safety and well-being. The court's decision was grounded in the need to safeguard the child's health and welfare, reflecting the principles of parens patriae.

Orders