Re Millie; Secretary of the Department of; Communities and Justice and Minister for Families; Communities and Disability Services (No. 4)

[2019] NSWSC 1748

Supreme Court

New South Wales

Medium Neutral Citation:	Re Millie; Secretary of the Department of; Communities and Justice & Minister for Families; Communities and Disability Services (No. 4) [2019] NSWSC 1748
Hearing dates:	6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Existing secure accommodation orders permitted to expire.
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 for the young person to have supported independent living (“SIL”) outside the Sherwood House program has been approved and SIL arrangements made, enabling her to move out of Sherwood House into her own accommodation.
Cases Cited:	Re Anita (No. 3) [2016] NSWSC 1959 Re Secretary, Department of Family Community Services; Re Lee [2015] NSWSC 1276. Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 2) [2019] NSWSC 1110 Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 3) [2019] NSWSC 1416
Category:	Consequential orders (other than Costs)
Parties:	Re Millie; Secretary of the Department of Communities and Justice & Minister for Families Communities and Disability Services v No Defendant
Representation:	Counsel: Secretary of the Department of Communities and Justice & Minister for Families Communities and Disability Services: 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. Today brings to an end the exercise of the Court's parens patriae jurisdiction in relation to the young person, Millie. The Court’s orders providing for her secure accommodation at Sherwood House will expire at 5 PM today and for the reasons which follow they will not be extended any further. “Millie” is not the young person’s real name, but a pseudonym used to protect her identity.

2. Millie turned 18 in September. After Millie’s 18th birthday, the Court continued secure accommodation orders in its parens patriae jurisdiction, involving personal restraints on the basis of well-established principles: Re Anita (No. 3) [2016] NSWSC 1959, see also Re Secretary, Department of Family Community Services; Re Lee [2015] NSWSC 1276.

3. The exercise of such jurisdiction for a period after Millie’s 18th birthday, and during transition into a framework where the Public Guardian is fully apprised of her situation and responsible for her welfare is justifiable in Millie’s case. Millie has a number of disabilities including a lack of capacity for insightful decision-making and the evidence shows that she potentially faces substantial personal risks for her safety outside Sherwood House unless she is placed in a well regulated environment.

4. The Court has made a series of orders in relation to her secure accommodation at Sherwood House, principally to protect her from self-harming. Part of that history is set out in the Court's previous judgments to which I refer: Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 2) [2019] NSWSC 1110; and Re Millie; Secretary Department, Family & Community Services & Minister for FACS (No. 3) [2019] NSWSC 1416.

5. Ms Shea on behalf of the Secretary submits that there is no wish further to extend the secure accommodation orders for Millie. Ms Kelso, the independent legal representative for Millie, has strongly affirmed the same conclusion.

6. The Court is pleased to be able to discharge secure accommodation orders such as these. It discharges them over Millie for two main reasons. First, the Court is confident on the evidence that the Public Guardian has been able to establish a sound relationship with Millie. Mr Watt, on behalf of the Public Guardian, has met Millie a number of times and has already been involved in some of the decision making about her future accommodation, which is mentioned below. The Court is satisfied that a transition period has allowed implementation of the NCAT orders appointing the Public Guardian as her guardian.

7. But secondly and most importantly since Millie’s case was last before the Court the National Disability Insurance Agency (“NDIA”) has now made decisions to fund fully supported independent living accommodation (“SIL”) for Millie. This efficient response to concerns raised has allowed those working in Millie’s interests to go and find Millie a suitable SIL situation. Accommodation has now been found for her in a place which, the evidence shows, is very suitable. It is about 12 kilometres, from the home where her foster parents live. They are some of the most important people in her life. Her future SIL accommodation will make them therefore readily accessible to her and will allow them to be able to see her more often in the future as well.

8. The transition to this SIL has already started. Millie has already been staying overnight fortnightly with her foster parents away from Sherwood House. She has reaffirmed her good relationship with them with continuing regular contact, as she leaves Sherwood House.

9. Ms Kelso has said that Millie is both pleased and excited to be leaving Sherwood House. That is obviously so today and is a good result from her time at Sherwood House.

10. I would particularly like to thank all of those who have had the care and supervision of Millie at Sherwood House for such a long time, both in her previous stay there and the more recent time she has spent there.

11. I would particularly thank Ms Janice Carroll and Ms Barbara Hardman, who have been very closely involved in planning Millie’s protection and development programs at Sherwood House. I note that Ms Hardman has just retired and that Millie is disappointed not to see her regularly now. Ms Hardman has constructed and designed many parts of the Sherwood House program that Millie experienced and has come to know Millie very well. I also wish to thank Ms Magdalena Pawelec, and also Ms Hanna Macdonald who has been Millie’s caseworker. All have given close attention to Millie’s welfare.

12. I want to also thank Ms Shea and Ms Kelso, respectively Counsel for the Secretary and the Independent Legal Representative for Millie. I would also mention those who have instructed them to provide the important legal framework for what can only be said to be a very successful part of the Sherwood program. The immense change for the better that has taken place in Millie over the last few years, is a significant signpost of the success of this program.

13. I would also specifically thank the psychiatrist, Dr Kenneth Nunn and the psychologist, Dr Rebecca Helyer, whose reports I have read on every occasion that Millie’s matter has come before the Court. Their professional insights into Millie’s present behaviour and into her past and her future have always been helpful to the Court.

14. But I wish to say a few things to Millie herself. Millie, if you don’t mind me addressing you directly, although you have Ms Kelso here, I would like to say a few things to you.

15. Millie, this is an important moment in your life. You are about to step outside Sherwood House again, into the wider world, to be more independent, to spend more time with family and to make new friends. You can leave Sherwood House proud of what you have done for yourself and for others. At the time you leave, one of the very pleasing things about your time at Sherwood House is the support you have given to other young people there.

16. You have ended up being one of the older children in the Sherwood program and have taken good care of the younger ones. That has been very much noticed and praised. While you have been there you have developed all sorts of skills. I have seen the evidence of your polishing everyday skills that will help you in the wider world. These include skills in the area of food preparation and cooking and practical steps in daily banking and finance transactions. And even recently you have taken up the useful skills of dressmaking and sewing.

17. You have made big changes to your own life in recent times. I see that you have had more and more good weeks, in which you have kept yourself safe and which should give you confidence for your long-term future, as well.

18. I have seen evidence over the last few months about how you have deepened your interests, in your arts and crafts, in your sport and gym work and, in particular in recent times, your interest in going on beach outings. And in your studies, your enjoyment of mathematics has made you want to learn more. It is hoped that in future years you will be able to develop these skills and abilities even further. And so many of the staff in the Sherwood program played a big part in helping you bring out those skills that you have developed in youself.

19. You are moving out into a wider world, which will clearly be good for you, and it’s where you should go. You have many people to look to there for support, your foster parents, and Mr Watt and the others at the Public Guardian. The people back at Sherwood house still want to stay in touch with you. You have plenty of people to talk with.

20. I think it is important for you to remember, if I can say this, that you have come a very long way for the better in the last few years. You are to be congratulated for that. The Court is very pleased to see that and is very proud of what you have done.

21. There is much you can do in the wider world. But do not push yourself too hard or too fast. And be careful and keep yourself safe. But if you can do that, everyone has confidence that you will do well. But be prepared to accept help if and when you need it.

22. It is clear from the evidence here that I have seen you have excellent professional support. You have a good relationship with your foster parents. There are many people who care about you, and will support whatever you are going through in the future. You can always look to them.

23. With those comments to Millie, I am in a position now to confirm that the existing restraining orders will expire at 5.00pm this afternoon. But Millie continues under the jurisdiction of the Public Guardian as a result of NCAT’s recent orders. Arrangements are in place for Millie to leave Sherwood House and the Sherwood program on the date specified in mid-December and she is looking forward to that.

24. Millie has been asked if she wants to say anything herself but she does not.

25. Good luck Millie. I hope it all goes well and particularly on the day that you leave in about a week from now. It will be a very big day. Thank you everyone for looking after her.

Conclusion and Orders

26. The Court makes the following orders, notations and directions:

The Court orders that:

1. The Summons filed on 25 January 2019 be dismissed.

2. Order 2 of the Orders made on 18 October 2019 (relating to transport) be discharged.

AND IT IS NOTED THAT:

1. The detention and restraint orders made on 18 October 2019 expire at 5pm today.

2. Orders 9 and 10 of the Orders made on 25 January 2019 (the non-publication and suppression orders) remain in force.

3. Millie’s Public Guardian, Mr Jeff Watt, has consented to Millie continuing to reside in the Sherwood program until 16 December 2019.

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Decision last updated: 11 December 2019