Re Thomas

[2009] NSWSC 1490

CITATION:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 1490
HEARING DATE(S):	14 December 2009
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	14 December 2009
CATCHWORDS:	CHILDREN – Parens patriae jurisdiction – Court to keep close supervision of implementation of radical order – obligation of DoCS to provide relevant information
CATEGORY:	Procedural and other rulings
PARTIES:	Director-General, Department of Community Services (first plaintiff) Minister for Community Services (second plaintiff) "Thomas" (first defendant)
FILE NUMBER(S):	SC 1258/09
COUNSEL:	Mr G Moore (plaintiffs) Ms K Reynolds (first defendant)
SOLICITORS:	I V Knight, Crown Solicitor (plaintiffs) Leonie Miller (first defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 14 December 2009

1258/09 Director-General, Department of Community Services; Re “Thomas”

JUDGMENT (ex tempore)

1 HIS HONOUR: The Court has been informed by counsel for the Director-General of two incidents occurring between Thomas and the other residents of Sherwood House, one with Sally on 30 November 2009 and another with Nellie on 5 December 2009, when it appears at least some form of sexual contact took place between Thomas and the other relevant residents. This could only have occurred if there had been some breakdown in the systems said to be in place in Sherwood House providing for, if not continual personal supervision of each resident, at least such continual supervision as would prevent unauthorised and inappropriate contact between them.

2 So far as Sally is concerned, the matter has been raised with Slattery J, who is managing her case; and so far as Nellie is concerned, the matter is to be mentioned before Palmer J tomorrow. Slattery J has apparently required the Director-General to call evidence from the Director of Intensive Support Services to explain what has happened and to show what further steps have been taken to ensure that there is no repetition.

3 Counsel for the Director-General has offered to adopt a similar course in this case. While the offer is appreciated, and while Ms Reynolds, for Thomas, favoured proceeding along that course, I am reluctant to impose on litigants, even the Director-General, the burden of adducing additional evidence if it is not going to serve a useful purpose.

4 There does not appear to be any suggestion on any part that it would be in Thomas’s interests to remove him from the current arrangements at Sherwood House. The only course that the recent events could suggest is a requirement for more stringent supervision, particularly but not limited to at night. As has been said, the systems currently in place ought to have prevented these incidents. However, the effectiveness of systems depend on the human participants in them complying with the system. In this case one member of staff has been dismissed for a departure from the protocols in place.

5 Ultimately the Director-General, in whose care Thomas has been placed, is responsible for his safety and that of the other children in Sherwood House. Nothing I impose by way of order will have any greater effect on the Director-General than a reminder, which I give by this judgment, of the Director-General’s ultimate responsibility for Thomas’s safety, welfare and well-being under the supervision of the Court. Stimulated by the recent events, I expect that the Director-General will take steps to review the existing protocols to ensure that they are adequate and to instruct staff in the importance of adherence to them and, if necessary, to discipline staff in the event of departures from them.

6 Having made those observations, for my part I see little utility in requiring at this stage further affidavit or other evidence as to the events that have happened or as to steps taken to prevent a recurrence. I would nonetheless expect both those topics to be covered in the evidence and reports that would in any event have to be put before the Court when the matter next returns before the Court in February 2010.

7 I reserve liberty to the parties to apply by arrangement with my associate, on such notice as may seem appropriate in the circumstances, in the event of any further difficulty arising. During my absence between 16 and 24 December any such application may be made to Palmer J and/or to the duty judge during vacation.

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