Re Millie; (No. 3)

[2019] NSWSC 1416

Supreme Court

New South Wales

Medium Neutral Citation:	Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 3) [2019] NSWSC 1416
Hearing dates:	18 October 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Equity - Protective List
Before:	Slattery J
Decision:	Existing orders extended. Proceedings adjourned to 6 December 2019 at 9.30am.
Catchwords:	CIVIL PROCEDURE – Court administration – Court powers – control of proceedings – young person under the parental responsibility of the Minister residing in the Sherwood House program – young person has already turned eighteen – Court’s parens patriae jurisdiction continues over the young person, not by reason of her age but by reason of her disability – full funding assessment through the National Disability Insurance Scheme (NDIS) for the young person to have support and independent living outside the Sherwood House program has been assessed but the full financial package has not yet been approved – Court adjourns the matter for a further short period to allow the NDIS issue to resolve – observations made concerning the need for early resolution of the young person’s situation.
Cases Cited:	Re Anita (No. 3) [2016] NSWSC 1959 Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 2) [2019] NSWSC 1110 Re Secretary, Department of Family Community Services; Re Lee [2015] NSWSC 1276
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: Ananda Hall The Public Guardian: Mr J Watt
File Number(s):	2014/3239392019/27565
Publication restriction:	No

EX TEMPORE Judgment

1. Millie is a young person, who has been the subject of orders made under the Court’s parens patriae jurisdiction for a number of years. “Millie” is not her real name. Her identity has been suppressed. In a judgment given on 26 August 2019, the Court gave a short account of Millie’s history up to that date: Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 2) [2019] NSWSC 1110.

2. This judgment should be read with the Court’s 26 August judgment. Events, matters and persons are referred to in both judgments the same way.

3. Millie’s medical and mental health situation have been set out in the Court’s 26 August judgment (at [4] – [6]). And the recent difficulties that have been encountered in obtaining final funding approvals from the NDIA up to the time of the 26 August are also set out in that judgment (at [9] – [14]).

4. Millie was a resident of the Sherwood House program and making excellent progress until 2016. That year she was moved from the Sherwood House program to a more independent form of living. Unfortunately that arrangement broke down and Millie returned to Sherwood House within about twelve months.

5. Millie has just turned eighteen. This is the second occasion in seven weeks that the Court has considered her situation, close to her 18th birthday. The plaintiffs, the Secretary (of the Department of Family and Community Services) and the Minister, and Millie’s independent children's representative all apply for the Court’s existing orders in relation to Millie to continue for a further short period.

6. An application has been made to the Guardianship Tribunal for the Public Guardian to be appointed as Millie's guardian and that order has now been made. The Court is assisted today by the presence of Mr J. Watt representing the Public Guardian. He has only met Millie for the first time today.

7. After Millie’s 18th birthday the Court can continue to make orders in its parens patriae jurisdiction involving restraints of the character of the orders made in this case: Re Anita (No. 3) [2016] NSWSC 1959 and the decision referred to in that of Brereton J in Re Secretary, Department of Family Community Services; Re “Lee” [2015] NSWSC 1276. This is justifiable in Millie’s case given her incapacity for decision-making and the risks that the evidence shows with her disabilities she potentially faces outside Sherwood House.

8. The evidence now before the Court shows that after some months of applications to the NDIA for funding for Millie to live in supported independent living, some approvals were put in place before her 18th birthday. But the position is still not complete in two important ways that are each critical to her future welfare and stability outside the Sherwood House environment.

9. The NDIA has approved funding for a supported independent living for Millie. But Millie’s care needs are sufficiently high that a specialised funding package needs to be negotiated and approved for her supported independent living in the community. In the time available, this has not been able to be done. This is not easy due to Millie’s complex needs. But given her age, Sherwood House is rapidly ceasing to be a suitable environment for her. Every day that goes by where this decision is not made acts not only to her present disadvantage but it diminishes her longer term welfare.

10. The other matter is that proper supported independent living accommodation has not yet been able to be located for Millie, despite the searches that several agencies are undertaking for her. She wishes to be close to other family members, with whom she is now opening up very productive relationships. That positive development for her benefit places geographical limits on a search for her accommodation, so finding a placement for her will be difficult.

11. As the Court indicated in its 26 August judgment (at [15]) this is most unsatisfactory and “for her welfare and the better administration of justice by this Court, these issues should be addressed as soon as possible”.

12. Millie's mental health needs, particularly during this delicate phase of transition where the Public Guardian is still developing an understanding of and relationship with her and where the NDIA’s decision-making and her accommodation arrangements are still in her flux, mean that the stability of the Court’s parens patriae jurisdiction should continue for at least a short further period.

13. But as the Court expressed before in the 26 August judgment this should not go on for very long. It is highly desirable that the Court’s need for urgency in decision making about support for Millie be informed of the Court’s desire for an urgent resolution of her situation, of support for her future living situation.

14. Accordingly, with that in mind the Court will adjourn the proceedings until 6 December 2019 for further mention and make the following orders and directions:

1. Until 5:00pm on 6 December 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 5:00 pm on 6 December 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 4:00 pm on 27 November 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 Hours including information about possible carers, locations and the transition plan.

5. 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.

6. The proceedings be adjourned to 9:30 am on 6 December 2019 before Slattery J.

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

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