Re Vernon - [2011] NSWSC 1222

Supreme Court

New South Wales

Medium Neutral Citation: Director General, Department of Family and Community Services; Re Vernon [2011] NSWSC 1222
Hearing dates: 14 September 2011
Decision date: 14 September 2011
Jurisdiction: Equity Division - Duty List
Before: Rein J
Decision:
See [11]

Catchwords: FAMILY LAW AND CHILD WELFARE - Parens patriae - Scope of power - Where 13-year-old child has a form of autism, developmental problems and an extensive history of physical aggression, violent and anti-social behaviour - Where Director-General and the Minister seek an order for the child to be placed in the care of a different institution to instigate a plan for his future care and also orders that include the ability to restrain and medicate the child whilst he is in the care of the new institution - Whether such order may be made in parens patriae jurisdiction
Cases Cited: Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217
Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644
Category: Principal judgment
Parties: Director General, Department of Family and Community Services (first plaintiff)
Minister for Family and Community Services (second plaintiff)
Representation: W Hunt (plaintiffs)
R A Clarke (independent legal representative for Vernon)
Crown Solicitor (plaintiffs)
Ross A Clarke & Associates (independent legal representative for Vernon)

File Number(s): SC 2011/296723
Publication restriction: In addition to the anonymisation of the child's name, this version of the judgment also further anonymises the institutions that have been or will be involved in the care of the child

EX TEMPORE Judgment

In this matter the Director-General of the Department of Family and Community Services ( "the Department" ) and the Minister for Family and Community Services ( "the Minister" ) seek orders in relation to a child to be known as Vernon for the purposes of these proceedings. There is detailed evidence before me about the nature of the problems in relation to Vernon, who is 13 years of age, and essentially the material establishes that Vernon suffers from a form of autism and developmental problems. However, there seems to be no question that there are problems which have led to a situation now of crisis after many years.

Vernon was taken into care a number of times and in 2001 responsibility was given to the Minister. Since then there have been periods of foster care, some more successful than others. His situation at the moment is that a foster care agency has been looking after him but there have been significant problems, including considerable aggression and the need for a number of hospitalisations both in emergency units and even in psychiatric units in various hospitals. There has been, for example, an attack on the mother of another patient in one of the hospitals.

There is evidence before me of a propensity to physical aggression, manifesting itself in the destruction of property. Photographs at pages 127-143 of Exhibit A would indicate that there are significant problems in relation to Vernon's behaviour that are very difficult…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Vernon

Details

AGLC: Re Vernon [2011] NSWSC 1222
Case: [2011] NSWSC 1222
Decision Date: 14 September 2011

CaseChat Overview and Summary

In the Family Court of Australia, the Director-General of the Department of Communities, Child Safety and Disability Services and the Minister for Communities, Child Safety and Disability Services sought orders concerning a 13-year-old boy with a form of autism, developmental problems and an extensive history of physical aggression, violent and anti-social behaviour. The Director-General and the Minister sought orders for the child to be placed in the care of a different institution to instigate a plan for his future care. They also sought orders that would allow the new institution to restrain and medicate the child. The court was required to determine whether such orders could be made under the parens patriae jurisdiction.

The court considered whether the power of the court to make orders in the best interests of a child included the power to make orders that could result in the child being restrained and medicated. The court found that the power of the court in parens patriae jurisdiction extended to making orders that were in the best interests of the child, including orders that could result in the child being restrained and medicated. The court held that the Director-General and the Minister had the authority to seek such orders on behalf of the child. The court found that the orders sought were in the best interests of the child and made the orders sought.

The court made orders that the child be placed in the care of a different institution to instigate a plan for his future care. The court also made orders that allowed the new institution to restrain and medicate the child whilst he was in their care. The court found that these orders were in the best interests of the child and necessary to ensure his safety and well-being.

Orders