Re Miki (No 2) - [2025] NSWSC 369

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Miki (No 2) [2025] NSWSC 369
Hearing dates: 16 April 2025
Date of orders: 16 April 2025
Decision date: 16 April 2025
Jurisdiction: Equity
Before: Meek J
Decision:
Orders made granting leave to the Secretary to transition child from secure accommodation, for temporary continuation of secure accommodation, for reporting and for ancillary matters.

Catchwords:
CHILD WELFARE — Parens patriae — Application for secure accommodation orders — Secure accommodation orders made in November 2022 for neurologically affected child exhibiting self-harming behaviours and at significant risk of sexual abuse — Progression of child through a protective care and transformative program designed to restore the child to life in the community having had the benefit of appropriate health and educative supports — Transition leave sought and ordered
CHILD WELFARE — Parens patriae — Secure accommodation orders — Protective care and transformative program explained — Care supports and their aims described
CHILD WELFARE — Parens patriae — Secure accommodation orders — Transition considerations explained — Leave to transition necessarily to be assessed by reference to viable placement alternatives — Proposed placement remote from child’s former carers — No closer acceptable alternative placement readily available — Balancing of risks associated with move to proposed distant placement against risks associated with delaying transition — Diminishing returns to be gained by keeping child within the existing program and facility — Further confinement with potentially unduly prolonged delay might be counter-productive — On balance, transition is appropriate — Nature of the protective jurisdiction enables the Court to stand ready to meet exigencies of setbacks if risks materialise

Cases Cited:
Director-General, Department of Human Services; Re Thomas [2010] NSWSC 1525

Texts Cited:
Johnson, Claudia Alta, A White House Diary (2007, University of Texas Press)
Lewis, C. S., The Abolition of Man, or, reflections on education with special reference to the teaching of English in the upper forms of schools (1943, Oxford University Press)

Category: Procedural rulings
Parties: Secretary NSW Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)
Representation:
Counsel:
B Dean (Plaintiffs)
D McMullen (solicitor advocate) (Separate Child Representative)
Solicitors:
Crown Solicitor’s Office (Plaintiffs)
Legal Aid NSW (Separate Child Representative)

File Number(s): 2022/337287

EX TEMPORE JUDGMENT (REVISED)

Introduction

HIS HONOUR: History is replete with pearls of wisdom regarding the importance of nurturing children, providing them with loving care, protecting them as need be, teaching and explaining truths to them, equipping them with life skills, stimulating their imaginations and so inspiring them to thrive and prosper.
CS Lewis, the famed British literary scholar and novelist gave some insight into one of the many aspects of guiding the growth and instruction of children, observing, “The task of the modern educator is not to cut down jungles, but to irrigate deserts.”^[1]
1. C. S. Lewis, The Abolition of Man, or, reflections on education with special reference to the teaching of English in the upper forms of schools (1943, Oxford University Press) at 9.

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 (No 2)

Details

AGLC: Re Miki (No 2) [2025] NSWSC 369
Case: [2025] NSWSC 369
Decision Date: 16 April 2025

CaseChat Overview and Summary

The parties in this case are the Department of Communities and Justice, as the applicant, and a neurologically affected child, Miki, who had been under secure accommodation orders since November 2022. The dispute pertains to the granting of transition leave to allow Miki to move to a different placement, despite concerns about the significant risk of sexual abuse and the child's self-harming behaviours. The matter was heard in the Family Court of Australia.

The legal issues before the court were whether transition leave should be granted to Miki, considering the risks associated with moving to a distant placement and the benefits of continuing in the existing secure accommodation program. The court had to assess whether the potential risks of the move were outweighed by the benefits of transitioning to a new environment, which could provide Miki with a better opportunity to integrate into the community.

In delivering the decision, the court considered the progress Miki had made through a protective care and transformative program, which had helped to restore the child to a life in the community with appropriate health and educative supports. The court emphasised the importance of balancing the risks of the move against the benefits of further confinement within the existing program and facility. The court concluded that transition was appropriate, as keeping Miki in the current placement could lead to diminishing returns and potentially prolonged delay. The court's protective jurisdiction enabled it to address any setbacks that might arise if risks materialised.

The Family Court granted leave for Miki to transition to the proposed placement, recognising the need to balance the risks and benefits of the move against the potential benefits of continued confinement in the existing program. The court's decision was based on the assessment that no closer acceptable alternative placement was readily available and that the proposed placement was in the best interests of the child.

Orders