Re Rosie

[2022] NSWSC 1001

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Rosie [2022] NSWSC 1001

Hearing dates:

25 July 2022

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Secure accommodation orders made

Catchwords:

CHILD WELFARE – Parens patriae – Application for secure accommodation orders – Child in custody – To be released tomorrow – Risk if released into community – Orders made

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9(1)

Cases Cited:

GR v Secretary, Department of Communities and Justice [2020] NSWSC 892

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

Re ‘K’ and ‘M’ [2021] NSWSC 1314

Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220

Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)

Representation:

Counsel:
B J Dean (Plaintiffs)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)

File Number(s):

2022/217845

Ex Tempore Judgment

1. HIS HONOUR: This is an urgent application by the Secretary, Department of Communities and Justice (DCJ) and the Minister for Families, Communities and Disability Services (the Minister) for secure accommodation orders and a non-publication suppression order and other orders in relation to a young girl.

2. In accordance with the usual practice of the Court that arise in protective and parental jurisdiction, the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA (Emmett AJA agreeing).

3. I will refer to the young girl as Rosie.

4. The application is made by a summons which has been filed in court today and is brought under the Court's parens patriae jurisdiction.

5. In support of the application the plaintiffs rely upon an affidavit of Amy Eldridge dated 25 July 2022.

6. There is an exhibit to the affidavit.

7. Mr Dean of counsel has appeared on the application and provided the Court with valuable assistance.

8. He has also provided a written outline of submissions.

9. The extent of the parens patriae jurisdiction was considered by Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32]:

“23    The “parens patriae jurisdiction” of the Supreme Court, as it is customarily called, has its historical antecedents in the “infancy” or “wardship” jurisdiction of the Lord Chancellor of England. It was conferred on the Supreme Court by Imperial legislation (the New South Wales Act 1823, section 9 and the Australian Courts Act 1828, section 11) and Letters Patent (The Third Charter of Justice, 13 October 1823, clause 18), continued in operation by section 22 of the Supreme Court Act 1970 NSW.

24    With the commencement of that Act on 1 July 1972, the Court acquired, by virtue of section 23, a new source of jurisdiction sometimes characterised as “inherent” jurisdiction and called in aid as a source of “parens patriae” jurisdiction: Re AAA; Report on a Protected Person’s Attainment of the age of majority [2016] NSWSC 805 at [20]-[27]; Fountain v Alexander (1982) 150 CLR 615 at 633.

25    A convenient statement of the High Court of Australia of the nature, purpose and scope of the parens patriae jurisdiction can be found in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259.

26    By reference to observations made by Lord Eldon in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 389 ER 236 at 243, the High Court defined the purpose of the jurisdiction as being “the care of those who are not able to take care of themselves”.

27    The High Court approved the analysis of the jurisdiction by La Forest J of the Canadian Supreme Court in Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4^th) 1 at 14-21, including the observation (at SCR 410; DLR 16) that the “inherent jurisdiction” [exists] to do what is for the benefit of the incompetent” and “[its] limits (or scope) have not, and cannot, be defined”.

28    The jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be exercised for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4^th) 1 at 17.

29    The Court exercises caution in the exercise of the jurisdiction in cases (such as the present one) in which the Children’s Court exercises specialist, statutory jurisdiction, subject to a statutory right of appeal. The Court is concerned not to undermine the integrity of statutory procedures. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608. An exercise of the jurisdiction in this context is said to require “exceptional circumstances”.

30    The Court’s jurisdiction can not properly be invoked to circumvent a statutory appeal procedure: Re B (No. 1) [2011] NSWSC 1075 at [58]-[60].

31    Upon an exercise of the jurisdiction, the Court aims to give effect to a prudential regime for management of the affairs of a person in need of protection (managing risk prudentially), without strife, in the simplest and least expensive way in the interests of that person.

32    The purposive character of the jurisdiction is an important consideration in its exercise.”

10. The principles that guide the exercise of the jurisdiction particularly in relation to applications for secure accommodation orders were explained by Brereton J in Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220.

11. Re Thomas has been cited and considered in numerous cases, not merely in relation to secure accommodation orders but also, for example, recently in relation to interim care orders: see Re ‘K’ and ‘M’ [2021] NSWSC 1314 per Sackar J explaining the breadth of the parens patriae jurisdiction.

12. It is generally necessary to distinguish between the jurisdiction the Court exercises in relation to children.

13. Thus, for example, the paramountcy principle in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(1), that in any action or decision concerning a particular child or young person the safety, welfare and wellbeing of the child or young person are paramount, does not govern the exercise of the protective aspect of the Court's parental jurisdiction: see Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [39].

14. Ms Eldridge is a manager, case work with Metropolitan Intensive Support Services (Metro ISS) within the DCJ.

15. The DCJ case worker with responsibility for Rosie is Ms Dennes.

16. Ms Eldridge supervises Ms Dennes.

17. The Minister has parental responsibility for Rosie until she reaches 18 years of age pursuant to an order made by the Children's Court in 2015.

18. The immediate concern in relation to Rosie is that it is considered that she is at great risk in the community because of various matters, including physical and verbal violence, sexualised behaviour, increasing suicide ideation and self-harm and other matters listed and outlined in paragraph 14 of Ms Eldridge's affidavit.

19. Rosie has recently become involved with the juvenile justice system and is currently being held at a Youth Justice Centre.

20. That is as a consequence of charges being laid in July 2020 for inter alia common assault.

21. On 22 July 2022 a bail application was heard at the Children's Court and I am informed that the Magistrate indicated that due to Rosie's young age and her minor offences she should be released from custody.

22. The legal representative from DCJ on that occasion submitted Rosie should remain in the Youth Justice Centre for the weekend until this Court could be approached to seek orders for Rosie to enter into what is described as a specialised program. The submission was apparently acceded to.

23. On that occasion the Magistrate refused bail.

24. The urgency arises because the matter comes back before the Children's Court tomorrow morning.

25. It is not known what will occur tomorrow.

26. However, one possibility is that Rosie may be released from custody.

27. Ms Eldridge is concerned that Rosie has complex needs that cannot be thoroughly assessed or treated while she is in the community.

28. She is concerned that without intensive therapeutic work Rosie will continue to place herself at risk.

29. Ms Eldridge's affidavit gives a detailed history of Rosie's family, her education, general health, context with her family and her cultural identify.

30. The affidavit outlines the child protection history in relation to Rosie and her placement history.

31. Part of that history includes a placement with the MacKillop Family Services up until April 2020 and with the William Campbell Foundation from that time.

32. Remarkably between February 2021 and May 2021 Rosie was placed in five different foster care respite and out of guideline placements.

33. There have been other placements since then.

34. In late March 2022 the Intake Panel for the specialised program met to assess Rosie's eligibility for placement in the program.

35. She is considered eligible to enter the program but had recently had transition to an alternative care arrangement.

36. Her care had been transferred to Elver and her case manager to Metro ISS.

37. That occurred in early June 2022.

38. Until recently Aspire Homes Australia exercised the day-to-day care for Rosie.

39. On 15 July 2022 Aspire advised DCJ that the services were unable to continue to care for Rosie due to staffing constraints.

40. In June 2022 there have been various instances with Rosie self-harming and engaging in inappropriate conduct regarding herself and others who have treated her at various places, including hospital.

41. Subsequent to Rosie leaving hospital in early to mid-June there have been other instances of inappropriate physical behaviour to others.

42. In early July 2022 Rosie has been further involved in a number of instances at hospital, and whilst leaving hospital and travelling between placements and at a police station.

43. In early July 2022 as a consequence of an incident at her then placement Rosie was arrested and held in custody at the Youth Justice Centre which led to the charges that I have indicated.

44. Rosie has been seen by a psychiatrist, Dr Oldfield, in April 2022 who provided a detailed report at that time.

45. Rosie has been subsequently seen by Dr Oldfield in June 2022.

46. The proposal before the Court is that pending further order leave be granted to the Secretary, DCJ to detain Rosie at either Secure House or Secure Cottage in [location redacted] or FH House or FR Cottage, the secure premises and to use reasonable force, if necessary, to so detain her.

47. The details of the specialised program are set out in the affidavit of Ms Eldridge. In this regard I note the following:

“101.    The specialised program is a 16-bed therapeutic secure residential service owned and managed by Communities and Justice. The program currently consists of four separate residential units: Secure House; H Cottage at [location redacted]; and two properties at [location redacted] called FH House and FR Cottage. There are a total of 14 children and young persons in residence across the four sites.

102.    The program offers treatment, education and containment to a small number of children and young persons whose needs are so complex that they cannot be safely accommodated, let alone treated or educated, in the community.

103.    The cottages are multi-purpose and can be used as an extension of the therapeutic secure program or as a step-down model as children progress through the program, and require a less intensive level of support and are preparing to transition from the program.”

48. The affidavit of Ms Eldridge gives details of the current residence of Secure House.

49. The details of Secure Cottage, FH House and FR Cottage at least in terms of capacity are noted above.

50. Ms Eldridge's affidavit addresses the alternatives to the specialised program.

51. Rosie does not meet the eligibility criteria for what is described as the interim care model placement due to her high level needs.

52. Restoration of Rosie to either parent is not a viable option.

53. On 18 July 2022 Ms Dennes spoke with Rosie over the phone and talked to her about entry into the program. She explained details of the program to Rosie.

54. The affidavit of Ms Eldridge indicates that Rosie told Ms Dennes that she was glad that she was not returning to her placement with Aspire and that she was happy to be moving to the specialised program and looking forward to living with others and learning new skills to help her with her emotions.

55. I am informed that earlier today Ms Dennes spoke with Rosie's biological mother and advised her of the prospect of Rosie's imminent entry into the specialised program and her biological mother expressed that she was happy to hear about this care option for Rosie if it could keep her safe.

56. The affidavit of Ms Eldridge addresses transfer arrangements.

57. On the basis that the orders are made DCJ will inform Youth Justice NSW of the orders and arrange for Rosie to be released from what I have described earlier as the Youth Justice Centre. It is anticipated that Rosie will be collected by her caseworker and security personnel (from Secure House) and that will occur within 24 hours of the orders being made.

58. Ms Eldridge in the affidavit sets out particular reasons supporting the application for Rosie to live at Secure House.

59. These include:

“a.    Rosie is at risk of seriously injuring herself as she engages in high-risk behaviours such [xxxx];

b.    Rosie is at high risk of harm, either by misadventure or self-harm;

c.    Rosie’s behaviours have led to her becoming involved in the criminal justice system;

d.    Rosie has a long history of childhood trauma, which significantly contributes to her current difficulties;

e.    Rosie requires opportunities to begin to address her background of trauma and enable her to reach her potential;

f.    In the specialised program, Rosie will be provided with the opportunity to engage in education in a supported environment that has been tailored to her particular needs.

g.    Rosie will be able to maintain a connection to her family in a supported manner.”

60. The evidence that has been presented to me satisfies me that Rosie is at great risk to both herself and to others in the community if an order is made for her release without any proposed arrangement such as has been described in the evidence of Ms Eldridge.

61. It is a serious matter to restrain the liberty of a person.

62. I must consider balancing the effect of orders that restrain Rosie's liberty against the risks that I have mentioned.

63. On balance I am currently satisfied that the proposed interference with her liberty and the detention order is necessary and likely beneficial for her welfare.

64. In the above circumstances I propose to make the orders sought with some slight modifications as raised with the plaintiff's counsel.

65. The orders propose that Rosie be separately represented and that a request be made that Legal Aid, New South Wales arrange such representation.

66. Almost contemporaneous with the time of the listing of this matter in Court an email was received from Amanda Dodson, Solicitor in Charge (Care and Protection) at Legal Aid. The email was sent to my Associate and copied to the plaintiff's representatives.

67. The email indicates that a representative of Legal Aid was unable to appear at the listing of the matter this afternoon. Nonetheless Legal Aid has, it seems, already commenced arrangements to allocate a representative for Rosie. The separate representation of Rosie has been allocated to Ms Sharon Luke who is also copied into the email correspondence.

68. Because of the seriousness of a detention order the orders properly make provision that the parties have liberty to apply on 24 hours' notice.

69. Such an order will readily permit those representing Rosie and acting in her interest, should they be so advised, to apply to the Court urgently for any variation or discharge of these orders.

70. Subject to that liberty to apply it is contemplated that the plaintiffs will provide a report concerning Rosie's progress at Secure House or one of the other named facilities if she goes to one of those other facilities.

[Counsel addressed]

71. Following discussion with Mr Dean on behalf of the plaintiffs I have modified slightly the proposed short minutes of order.

72. I have been informed that the summons and the supporting material has already been served on a Ms Kelso at Legal Aid prior to 3pm today.

73. Nonetheless, I will formally order that the time for the summons and the supporting material be formally served and be abridged to 5pm today and that service may be made by email.

74. One of the proposed orders provides for the plaintiffs to file and serve a report or evidence prior to the adjourned date concerning Rosie's progress, including information as to her move to the secure premises, her progress at those premises and information as to the frequency and types of all incidents, including the use of restraint.

75. I have modified the initial proposed order to indicate that other information that is proposed to be the subject of the order be provided if it is available, but nonetheless the matters I have just mentioned ought to be the subject of the order.

76. The orders of the Court are:

1. The Notice of Motion is made returnable instanter.

2. The Notice of Motion is heard ex parte.

3. The proceedings be heard in a closed court.

4. The plaintiffs have leave to file the Summons in these proceedings dated 25 July 2022 (“the Summons”) in Court.

5. The Summons be made returnable on 25 July 2022 at Sydney.

6. Time for service of the Summons and supporting material is abridged to 5:00pm on 25 July 2022.

7. The proceedings be known as “Re Rosie” and that the child the subject of the proceedings be known as “Rosie”.

8. Rosie be separately represented and it is requested that Legal Aid NSW arrange such representation.

9. There be no publication of information that would identify, or tend to identify, “Rosie” as the subject of these proceedings, except for the purpose of:

1. the proper conduct of these proceedings;

2. any communication with NSW Police, NSW Ambulance and NSW Health services regarding “Rosie’s” safety, well-being or any criminal investigation involving “Rosie”;

3. an application by “Rosie’s” legal representative seeking bail or to vary bail conditions and for such an application to be heard and determined;

4. any review of “Rosie” by the Mental Health Tribunal; or

5. an application to the New South Wales Civil and Administrative Decisions Tribunal for a guardianship and/or financial management order,

6. the proper conduct of any criminal proceedings in which “Rosie” is a Defendant,

7. the proper conduct of any proceedings in which “Rosie” is the subject of those proceedings, or

8. identifying any claim that could be made by or on behalf of “Rosie” this order being made on the grounds specified in s. 8(1)(a), (c), and (e) of the Court Suppression and Non-publication Orders Act 2010.

10. Order 9 apply throughout the Commonwealth.

11. Pending further order, 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 “Rosie” at either:

1. Secure House; or

2. Secure Cottage, [location redacted]; or

3. FH House, or

4. FR Cottage

(collectively referred to as “the secure premises”) and, to use reasonable force if necessary to so detain her.

12. 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 take the child known as “Rosie” to the secure premises and transport the young person known as “Rosie” between premises.

12. Pending further order, the staff engaged or employed by the Secretary or the Secretary’s nominee(s) 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 “Rosie” in order to prevent her from injuring herself and/or others.

13. Leave is granted to the Plaintiffs and the Separate Representative who is appointed for Rosie to provide to the legal practitioner and/or legal service who is to represent Rosie in any criminal proceedings in which she is the Defendant, a copy of orders and/or transcripts made by this Court in these proceedings, and/or any documents filed in these proceedings with respect to Rosie, for the purpose of any criminal proceedings where Rosie is a defendant.

14. Leave is granted to the Plaintiffs to provide to Youth Justice NSW a copy of orders and/or transcripts made by this Court in these proceedings.

15. The Plaintiffs file and serve a report or evidence, on or before 5:00pm on Wednesday, 3 August 2022, concerning “Rosie’s” progress including:

1. Information as to her move to the secure premises;

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

3. Information as to the frequency, and types, of all incidents including the use of restraint;

such report to also contain such if any of the following information as may be available by that time

4. information as to her progress in engaging with relevant service providers;

5. A report from any treating psychiatrist, psychologist and general medical practitioner, if available;

6. information as to any assessments conducted;

7. Information as to arrangements for her education; and

8. Information as to arrangements for contact with her family.

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

18. The proceedings are listed before Meek J on Friday, 5 August 2022 at 9:30am.

**********

Amendments

30 January 2023 - Details of the program and the locations of associated premises abbreviated or redacted in paragraphs 22, 34, 46, 47, 48, 49, 50, 54, 55, 57, 58, 59, 70 and 76

Decision last updated: 30 January 2023