Re Millie

[2019] NSWSC 1110

Supreme Court

New South Wales

Medium Neutral Citation:	Re Millie; Secretary Department, Family & Community Services & Minister for FACS [2019] NSWSC 1110
Hearing dates:	26 August 2019
Date of orders:	26 August 2019
Decision date:	26 August 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Proceedings adjourned until 20 September 2019.
Catchwords:	CIVIL PROCEDURE – Court administration – Court powers – Control of proceedings – young person under the parental responsibility of the Minister resides in the Sherwood House program – young person three weeks short of her 18th birthday – Court’s parens patriae jurisdiction over her is shortly to expire – application to be made for appointment of the Public Guardian – funding assessment through National Disability Insurance Scheme (“NDIS”) has to support the young person living independently outside the Sherwood House program has not yet been undertaken – Court adjourns matter until after the young person’s 18th birthday to allow NDIS issue to resolve.
Cases Cited:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217
Category:	Procedural and other rulings
Parties:	Re Millie; Secretary Department, Family & Community Services & Minister for FACS v No Defendant
Representation:	Counsel: Secretary Department, Family & Community Services & Minister for FACS: Ms K. Shea   Solicitors: Independent legal representative: Ms K. Kelso Crown Solicitors: Karen Smith
File Number(s):	2014/3239392019/27565
Publication restriction:	No

EX TEMPORE Judgment

1. Millie is a young person residing in the Sherwood House program. She is now less than three weeks short of her 18th birthday. The Minister for Family and Community Services has parental responsibility for her. On the application of the plaintiff, the Secretary of the Department by Family and Community Services (“FACS”), the Court has for some years been making orders based on the principles in Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 to authorise Millie to be detained at Sherwood House. These and various ancillary orders have been crafted for her therapeutic benefit. “Millie” is the young person’s Court-ordered pseudonym.

2. But the time has come for Millie to leave the Sherwood House facility. The Court's parens patriae jurisdiction over her will soon expire. Next week, an application will be made on her behalf for the appointment of the Public Guardian to make decisions in relation to her accommodation and her affairs. If these proceedings are adjourned to about the time of her 18th birthday, the Public Guardian should be able to appear before the Court to indicate how its jurisdiction will be exercised for Millie. For that purpose, the Court will adjourn the proceedings, at least one more time, until just after Millie's 18th birthday. This will allow the Public Guardian to be appointed and to appear on the next occasion.

3. But Millie's timely transition out of the Sherwood House program looks uncertain. The principal matter delaying finalising Millie's transition is the decision making processes of the National Disability Insurance Scheme (“the NDIS”) through its executive agency the NDIA.

4. The history of the matter to date may be shortly stated. Millie is a young person with profound needs for support. Although Millie is very young, she already has a long history of disturbed behaviour, requiring high levels of care. The psychiatric evidence concerning her is that, due to years of physical and sexual abuse, she has at Sherwood House and elsewhere earlier exhibited self-injurious behaviour.

5. Her personal history has made her at times uncontrollably distressed. But hours of listening and talking with skilled staff at Sherwood House and therapy from skilled medical professionals has improved her outlook. The psychiatric evidence is that, with appropriate support and care, she is likely to improve further in coming decades, although slowly.

6. Millie’s current diagnosis is of in utero exposure to drugs and alcohol with consequent dysexecutive syndrome. She has complex cumulative and enduring post-traumatic stress syndrome due to neglect and abuse in her early developmental period. She has bi-polar disorder which is partly responsive, but still highly unstable. She has other syndromes and deficits that it is not necessary to detail.

7. In anticipation of Millie turning 18, NDIA applications were made on her behalf earlier this year in a timely way with the assistance of FACS, for funding through the NDIS.

8. The official community visitor reporting in March this year on Sherwood House expressed concern about the need to ensure that young persons, the subject of detention orders at Sherwood House, are transferred to other accommodation expeditiously once they turn 18 and for Sherwood House to undertake effective early leaving care planning for all children within the Sherwood program. Leave care planning was appropriate in Millie’s case.

9. The Court was told, at its 5 August hearing, that Millie has been granted access as a participant onto the NDIS. She was offered an NDIA planning meeting on 16 August 2019 to assess the quantification of her support needs and consequent funding levels.

10. The matter has been before the Court on a number of dates recently: 27 May, 17 July, 5 August and today to consider the way forward for Millie. On 5 August, the proceedings were specifically adjourned to today. The Court was told on the last occasion that the NDIS proposed to hold a planning meeting on 16 August, in relation to the level of funding for Millie's existing grant of access to the NDIS. The Court indicated on 5 August that it was highly desirable for Millie's future welfare for the final outcome of that planning meeting be available to the Court at today’s hearing.

11. As a result of the concerns expressed by the Court on 5 August, officers of the Department of Communities and Justice communicated expeditiously with the officers of the NDIA to indicate the plaintiff had been ordered to provide up to date evidence to the Supreme Court by 22 August about the outcome of the 16 August planning meeting.

12. Unfortunately, the matter has to be adjourned again. The Court has been told that the NDIA assessment meeting did occur on 16 August. But the result of that meeting is less than clear. It seems not to be in contest that Millie would benefit from a supported independent model of care (“the SIL model”) once she leaves Sherwood House. The SIL model for her would require a one to one staffing ratio and possibly increased staffing during an initial three to six month transition period. One independent service agency has been identified to find housing for Millie in an appropriate area with another young person in a situation close to Millie's family. But her possible placement there faces funding and experience obstacles.

13. Regrettably, NDIA staff have indicated the assessment of Millie's potential SIL funding is going to take up to another three months. Moreover, it is also said that it is unlikely that the process can be expedited. This creates an intolerable situation for the Court in making appropriate orders for Millie's transition out of Sherwood House.

14. The NDIA officers communicating with the officers of the plaintiff indicated on 21 August that they do not have "any experience with SIL providers that would be suitable" for Millie’s needs. It could take some time for a suitable placement for Millie to be found. The NDIA communication on 21 August also records what the NDIA explained at the meeting on 16 August: that assessment for the SIL model for Millie's disability support needs could take up to three months.

15. From the Court's perspective this is most unsatisfactory. Whilst the Court well understands the need to deploy and concentrate sufficient resources to meet all the other competing demands upon the NDIA assessment teams, Millie's need for certainty in the future support of her disability is time-critical, as she approaches her 18th birthday in a little under three weeks. For her welfare and the better administration of justice by this Court, these issues should be addressed as soon as possible.

16. With that in mind, the Court has decided to adjourn the matter and to publish these reasons. The Court has parens patriae jurisdiction over Millie until her 18th birthday. It is hoped that in a further three to four weeks this issue will be addressed by the NDIS.

17. Accordingly the Court makes the following orders and directions:

1. Until 5.00pm on 20 September 2019, leave be granted to the Secretary, Department of Communities and Justice (“the Secretary”) or the Secretary’s nominee(s) to detain the young person known as “Millie” at either Sherwood House, Sherwood Cottage Englorie Park, or Sherwood Cottage Bradbury (collectively referred to as “the secure premises”), and to use reasonable force if necessary to so detain her.

2. Leave be granted to the Secretary or the Secretary’s nominee(s), using whatever assistance the Secretary or the Secretary’s nominee(s) may deem appropriate, to transport the young person known as “Millie” between the secure premises.

3. Until 5:00pm on 20 September 2019, the staff engaged or employed by the Secretary at the secure premises, using whatever assistance may be necessary, and using reasonable force if necessary, be authorised to restrain the young person known as “Millie” in order to prevent her from injuring herself and/or others and/or to administer medication in accordance with medical advice.

4. On or before 4pm on 18 September 2019, the Secretary is to provide to the Associate to Slattery J and serve on Millie’s separate representative a report or evidence concerning Millie’s progress including:

1. Information as to her progress in the secure premises;

2. A detailed report from her treating psychiatrist, psychologist and any medical practitioner including details of her current and future proposed treatment plans;

3. Information as to contact with her family;

4. Information as to the frequency, and types, of all incidents;

5. Information in relation to her engagement in the community;

6. Information in relation to any plans being made for Millie to transition to a placement outside of Sherwood House including information about possible carers, locations and the transition plan.

1. Each party to the proceedings has liberty to apply to re-list the matter on 24 hours’ notice to the Associate to Slattery J or such other Judge as may be advised.

2. The proceedings be adjourned to 20 September 2019 at 9.30am before Slattery J.

3. The orders made in the proceedings today be entered forthwith.

4. The Court notes that an application has been made for the appointment of the Public Guardian to be Millie’s guardian after her 18th birthday and it is understood that the application should be determined next week; therefore, in the event it is so determined, the Court invites the representative of the Public Guardian to attend the Court on the next occasion, 20 September 2019, as the input of the Public Guardian on that occasion will be an essential part of managing Millie’s future welfare and transition out of Sherwood House.

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Decision last updated: 28 August 2019