Re WD (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION / COMMON LAW DIVISION

S ECR 2023 0280

IN THE MATTER of the Bail Act 1977 (Vic)
AND
IN THE MATTER of an application for bail by WD
BETWEEN
WD	Applicant
V
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S ECI 2023 06014

IN THE MATTER of an application in the parens patriae jurisdiction of the Supreme Court of Victoria
BETWEEN
SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	Applicant
v
WD	Respondent

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15, 18 and 19 December 2023
DATE OF RULING:	19 December 2023
DATE OF REASONS	1 February 2024
CASE MAY BE CITED AS:	Re WD (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 14

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CRIMINAL LAW – Application for revocation of bail – 12-year-old girl charged with murder – Condition of bail that the applicant remain in a secure lock-up facility in the care of the Secretary to the Department of Families, Fairness and Housing – Accommodation said to have become suddenly unavailable – Applicant said to pose an unacceptable risk – Application dismissed – Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 3B, 4E, 18AE, 18AF.

COURTS AND JUDGES – Parens patriae jurisdiction – Respondent 12-year-old-girl charged with murder – Application for orders authorising the Secretary to the Department of Families, Fairness and Housing to place respondent in a secure welfare service beyond time limit prescribed by statute – Best interests of the child – Application for orders directed at members of Victoria Police in relation to the transportation of the respondent in the event of an emergency and the use of reasonable force – Orders made in parens patriae jurisdiction – Children, Youth and Families Act 2015 (Vic), ss 44, 161B, 173, 289, 534 – Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38.

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APPEARANCES:	Counsel	Solicitors
For WD	A Waters	Dowling McGregor
For the Director of Public Prosecutions	A Stephanides (solicitor)	Office of Public Prosecutions
For the Secretary to the Department of Families, Fairness and Housing	S Fitzgerald	Department of Families, Fairness and Housing
For Victoria Police	L Carter	Victoria Police Legal Services Department

HIS HONOUR:

A. Introduction

These reasons concern 2 separate applications made in 2 separate proceedings. Both relate to arrangements for the care and custody of a 13-year-old girl who has been charged with murder (“WD”).[1] The Secretary to the Department of Families, Fairness and Housing (“the Secretary”) has parental responsibility for WD.[2]
[1]A pseudonym has been used to protect the identity of WD and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic). WD was 12 at the time of the applications and 13 at the time these reasons were delivered.
[2]Pursuant to a “care by Secretary” order made under s 289(1) of the Children, Youth and Families Act.
The first of these applications (“the Revocation Application”) was made by the Director of Public Prosecutions (“the Director”) on 14 December 2023. It was for the revocation of a grant of bail made on 17 November 2023 in a proceeding in this court (“the Bail Proceeding”). The Revocation Application was supported by the Secretary, but opposed by WD.
The second application (“the Parens Patriae Application”) was made in a proceeding commenced by way of originating motion filed by the Secretary on 19 December 2023 (“the Parens Patriae Proceeding”). Various orders were sought in the court’s parens patriae jurisdiction in relation to WD’s ongoing care in the event that the Revocation Application was dismissed. WD supported the Parens Patriae Application. The Director took a neutral position. However, objection was taken by Victoria Police to an order sought by the Secretary in the Parens Patriae Application.
The Revocation Application was heard on 14 and 15 December 2023. WD sought an adjournment of the application so that further evidence could be led. On 18 December 2023, the Revocation Application was adjourned to 19 December 2023,[3] on which date the Parens Patriae Application was also heard. Given the similar issues and considerations raised by both applications, it was agreed at the commencement of the hearing on 19 December 2023 that both applications would be determined concurrently and that evidence in each proceeding would be evidence in the other.
[3]Re WD [2023] VSC 780R.
In light of the urgency with which arrangements needed to be made for WD’s ongoing care, orders were made at the conclusion of the hearing on 19 December 2023 dismissing the Revocation Application and authorising the Secretary to place WD in a secure welfare service until 19 February 2024. These orders were a modified form of those sought by the Secretary in the Parens Patriae Application. The parties were informed at the time of making these orders that I would provide reasons for my decision in due course. Those reasons are as follows.

B. Background

WD first came to the attention of the Department of Families, Fairness and Housing (“the Department”) in 2011, and has since been in and out of the Secretary’s custody. As mentioned above, WD is presently the subject of a “care by Secretary” order that was first made in 2019 and has since been extended. This order has the effect of giving the Secretary parental responsibility for WD to the exclusion of all other persons.[4] In exercising parental responsibility for WD, the Secretary has all the rights, powers, duties, obligations and liabilities of a natural parent.[5]
[4]Children, Youth and Families Act, s 289(1)(a).
[5]Ibid, s 172(1)(b).
An extensive account of WD’s background has been set out in evidence adduced by the Secretary over the course of the Bail Proceeding, including several affidavits affirmed by a principal child protection practitioner employed by the Department who has been involved in WD’s care since November 2020 (“the Principal Practitioner”).[6] It is not presently necessary to set out in detail the difficulties WD has faced over the course of her life, save to say that it has involved significant trauma, abuse and disruption.
[6]The principal practitioner has 21 years of experience working in the children and families sector both in Australia and the United Kingdom, including working for 17 years as a social worker in child protection. She holds a bachelor of arts in social work and a postgraduate certificate in children and family studies.
WD has been described as an “exceptionally vulnerable young person” with “extremely complex protection and care needs”. She has been diagnosed with several mental health and cognitive functioning disorders. It is common ground that WD’s intellectual capacity has been estimated as equivalent to that of a 6-year-old with respect to both her maturity and her level of comprehension.

B.1 Procedural history

The alleged offending is said to have occurred in the early hours of 16 November 2023. Later on the same day, WD was arrested and remanded in custody to appear before the Children’s Court of Victoria. It is unnecessary to describe the circumstances of the alleged offending in any detail for the purposes of these applications. It suffices to say that, as is evident from the nature of the charge WD is facing, the circumstances are of the utmost seriousness.
On 17 November 2023, WD made an urgent application for bail in this court. The application was heard later the same day. As WD had been charged with murder, it was necessary for her to establish the existence of exceptional circumstances which justified the grant of bail.[7] The Director correctly accepted that the evidence overwhelmingly demonstrated that such circumstances existed.
[7]Bail Act 1977 (Vic), s 4AA(1), sch 1, item 2.
The real issue on the application was whether or not there was an unacceptable risk that, if released on bail, WD would endanger the safety or welfare of any person.[8] To ameliorate any such risk, the proposed conditions of bail included that WD be transferred to a secure welfare service with lock-up facilities from which she could not depart (“the Secure Location”), where she would remain in the care of the Secretary.[9]
[8]Ibid, s 4E(1)(a)(i).
[9]See Children, Youth and Families Act, s 44(a)(ii).
The Secure Location is a secure residential unit with locked doors dividing different areas of the facility. It is staffed 24 hours each day by professionals trained in the complexities of working with children with significant trauma backgrounds, many with whom WD is already familiar because she has previously resided there. Evidence was led at the hearing of the bail application on 17 November 2023 that WD would continue to have access to therapeutic support and appropriate medical and mental health assistance while at the Secure Location.
The duration of any placement of a child for whom the Secretary has parental responsibility (such as WD) in a secure welfare service (like the Secure Location) is governed by section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic). It authorises the Secretary to place a child in a secure welfare service for a period not exceeding 21 days (and, in exceptional circumstances, for 1 further period not exceeding 21 days). The Secretary may only do so if satisfied that there is a substantial and immediate risk of harm to the child.
Ultimately, bail was granted on 17 November 2023 on an undertaking by the Secretary for and on WD’s behalf[10] and on certain conditions, namely that WD reside at the Secure Location and return for a bail monitoring hearing within 21 days.
[10]Bail Act, s 16B.
A bail monitoring hearing was held on 6 December 2023. It resulted in the extension of WD’s bail on a further undertaking by the Secretary for and on WD’s behalf and on largely similar conditions. Accordingly, WD continued to reside at the Secure Location and was required to attend a further bail monitoring hearing on 27 December 2023.
The date of 29 December 2023 marked the end of the 42-day limitation on the Secretary’s authority to place WD at the Secure Location under section 173(2)(b) of the Children, Youth and Families Act.With this in mind, at the bail monitoring hearing on 6 December 2023, the Secretary foreshadowed the making of an application in the court’s parens patriae jurisdiction in relation to arrangements for WD’s ongoing care. Orders were made for any such application to be made returnable on 19 December 2023, to allow sufficient time for a decision to be made prior to 29 December 2023.
However, mid-afternoon on 14 December 2023, the Director filed the Revocation Application. It was made on the basis that WD’s placement at the Secure Location had “become suddenly unavailable” and, absent appropriate accommodation, WD would pose an unacceptable risk of 1 or more of:
(1)Endangering the safety or welfare of any person.
(2)Committing an offence while on bail.
(3)Failing to surrender into custody in accordance with the conditions of bail.
The Revocation Application was listed for hearing later on the afternoon of 14 December 2023, as the court was told the matter was urgent. The Secretary supported the Revocation Application. It was contended the Secretary could no longer ensure the safety of WD, the departmental staff who cared for her or the broader community whilst WD was residing at the Secure Location.
Given the urgency with which the Revocation Application had been brought on, WD’s counsel had not been able to obtain instructions from WD and sought an adjournment to allow for this to occur. After the Principal Practitioner was asked by the court to make enquiries, she confirmed that a bed would remain available for WD at the Secure Location overnight and that this would not present any greater risk to the physical safety of other young persons at the Secure Location because WD was being kept in isolation. Accordingly, the Revocation Application was adjourned to the following morning.
On the resumption of the Revocation Application on 15 December 2023, counsel for WD confirmed that the application was opposed. It was submitted that there was insufficient material to satisfy the court that WD’s level of risk had become unacceptable such that revocation of her bail was appropriate. I indicated I was inclined to further adjourn the Revocation Application to 19 December 2023, so it could be heard with the application which had been foreshadowed in the court’s parens patriae jurisdiction.[11]
[11]See par 16 above.
In doing so, I observed that although the Principal Practitioner’s affidavit was stated to be made “from [her] own knowledge unless otherwise stated”, much of the information it contained was necessarily hearsay. In response, the Secretary sought leave to adduce further evidence from a staff member at the Secure Location who had direct involvement with WD. That leave was granted, and evidence was given by the operations manager of the Secure Location (“the Operations Manager”).[12]
[12]The Operations Manager has worked at the Secure Location for 4 years and is responsible for its day-to-day operations. In addition to having some direct involvement with WD, the employees responsible for WD’s full-time care report directly to the Operations Manager.
In light of this further evidence, at the conclusion of the hearing on 15 December 2023, the parties were informed that I would consider my decision over the weekend and deliver a ruling on the application to adjourn the Revocation Application on Monday morning, being 18 December 2023. The parties were also informed that I would be available over the weekend on short notice if there were any developments concerning WD’s welfare or safety which necessitated a further application or applications. No such application was made.
As stated above, on 18 December 2023 I delivered a ruling further adjourning the Revocation Application to 10.00am on 19 December 2023. My reasons for this ruling are provided elsewhere.[13] In short, I considered it appropriate that the Revocation Application be heard on the same date as the application previously foreshadowed in the court’s parens patriae jurisdiction so that all matters relevant to WD’s position could be before the court in considering whether or not to revoke bail.
[13]Re WD [2023] VSC 780R.
In the event that the Revocation Application was unsuccessful, the following orders were sought by the Secretary in an originating motion filed on 19 December 2023 in the Parens Patriae Proceeding:
1.The Secretary is authorised to place [WD] in a secure welfare service until further order of this Court, in addition to the authority to place [WD] in a secure welfare service for a period of up to 42 days that is provided by section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic).
2.On the request of the Secretary, all members of the police force are authorised to use reasonable force to transport and detain [WD] if [WD] is removed from a secure welfare service to obtain health, assessment, or other necessary services. During the time of removal from the secure welfare service, [WD] is to be supervised by a police officer and deemed to be in the legal custody of the police officer.
Counsel for WD supported the orders sought in the Secretary’s originating motion. Given that the order sought in paragraph 2 purported to affect members of the police force, counsel for Victoria Police also appeared at the hearing and made submissions in opposition.

B.2 Evidence adduced in relation to WD’s placement at the Secure Location

Further to the evidence already given in relation to the viability of WD’s placement at the Secure Location by the Principal Practitioner and the Operations Manager at the hearings on 14 and 15 December 2023, on 19 December 2023 evidence was adduced from 2 further employees of the Department involved in making arrangements for WD’s care. The Principal Practitioner also gave further evidence. In addition, an acting commander of Victoria Police was called to give evidence of Victoria Police’s ability to assist if WD were required to be removed from the Secure Location to obtain necessary services.
The Principal Practitioner explained that changes in circumstances at the Secure Location had increased WD’s level of risk. She noted that at the time bail was granted, no other children were placed at the Secure Location, but the number of young persons at the Secure Location had since increased and further increases were expected over the holiday period. The Principal Practitioner deposed that this fact, combined with escalating dysregulated behaviours on WD’s part, meant that there was insufficient space at the Secure Location to ensure WD’s safety and the safety of other young persons placed there. The Principal Practitioner outlined that the Department’s position was that the risk associated with WD’s placement at the Secure Location had reached an intolerable level and could not be mitigated.
One reason provided by the Principal Practitioner to explain the Secretary’s suggested inability to meet WD’s needs was an instance of self-harming behaviour which WD was alleged to have engaged in on 13 December 2023. It involved WD self-administering an excessive quantity of Ventolin from an inhaler provided to her after she suffered an asthma attack. The Principal Practitioner deposed that while Department staff were responding to this incident, it was identified that the level of risk to staff and the community would escalate significantly if it became necessary to transport WD from the Secure Location to hospital. She also noted that there was a risk that WD would attempt to abscond in such circumstances.[14]
[14]WD has an extensive history of absconding in the past, prior to her arrest in relation to the alleged offending.
The Principal Practitioner explained that, in light of these concerns, the position of the Department was that it would be preferable for WD to be transferred to the Youth Justice Centre. In addition to reducing the risk of harm to WD and others, it was suggested that the transfer would enable a more in-depth forensic assessment of WD to be conducted. It was stated that multiple barriers existed to such an assessment being undertaken at the Secure Location that did not exist at the Youth Justice Centre.
The evidence given by the Operations Manager at the hearing on 15 December 2023 has also been outlined elsewhere.[15] Although this evidence was critical in ruling to adjourn the Revocation Application, much of it overlaps with or has been superseded by evidence given by other representatives of the Department at the hearing on 19 December 2023.[16] However, a few matters should be briefly referred to.
[15]Re WD [2023] VSC 780R, [18]-[25].
[16]See pars 35-60 below.
Relevantly, the Operations Manager provided a description of the Secure Location and its occupants at that time. At the time the Revocation Application was heard, there were 5 young people housed at the Secure Location, including WD. She said that WD had been allocated a large area for exclusive use and an outside area for recreational use.[17] She also described the “seclusion room” at the Secure Location,[18] which may be used as a “last resort” measure for any young person whose conduct escalates to such an unacceptable level that no less severe form of containment is appropriate. The Operations Manager’s evidence was that WD had been at the Secure Location for 4 weeks and there had not been an occasion during this time when it had been considered necessary to place WD in the seclusion room.[19]
[17]See further pars 37, 40 below.
[18]The ability to resort to seclusion measures in a secure welfare service such as the Secure Location is authorised by statute: see Children, Youth and Families Act, s 72P.
[19]However, see par 59 below.

The Operations Manager gave evidence of WD’s conduct and behaviour while at the Secure Location. She explained that the presence of other young persons at the Secure Location was causing WD distress at times because she was unable to have contact with them. The Operations Manager gave evidence that on 1 such occasion, WD protested by removing her clothing and urinating on the floor. On another occasion, WD blocked a doorway and attempted to prevent 1 of her carers from leaving a room. The Operations Manager explained that the use of the outside space was very important for WD’s routine and structure and this was facilitated by her care team on a regular basis. However, WD is often able to see other young persons placed at the Secure Location when she is in the outdoor area, which has resulted in some verbally abusive exchanges between WD and other young persons, including threats to kill.
The Operations Manager also gave evidence about the event on 13 December 2023 in which WD consumed excessive amounts of Ventolin.[20] She explained that although hospitalisation was ultimately not required in response to this incident, steps were taken in case that need eventuated. The Operations Manager expressed concerns similar to those of the Principal Practitioner in relation to transporting WD to hospital. However, under cross-examination the Operations Manager acknowledged that it had been necessary to transport other children from the Secure Location to hospital with the assistance of a police escort in the past. While the Operations Manager stated that, naturally, she had no control over the police, a “strong liaison” was maintained between staff at the Secure Location and Victoria Police.
[20]See par 29 above.
The Operations Manager’s evidence was expanded on and further substantiated by the evidence of the director of after hours and secure care services at the Department (“the Secure Care Director”).[21] Although intimately familiar with the Secure Location and the therapeutic care model there adopted, the Secure Care Director had not provided direct care to WD nor met her in person. He described the Department’s secure welfare service (of which the Secure Location is 1 component) as a short-term crisis stabilisation intervention with a primary focus on meeting a child’s protection needs while simultaneously managing any risks posed by the child to others.
[21]The Secure Care Director has worked in child and family services since 2009 and has been employed by the Department since 2011. He has held his current role since July 2020. His qualifications include a bachelor of social science and an executive master of public administration. The Operations Manager reports directly to the Secure Care Director.
He stated that the therapeutic care model adopted at facilities like the Secure Location is required to be dynamic and flexible, in order to respond to the high turnover of young persons with complex trauma presentations and high care needs. In relation to turnover, the Secure Care Director’s evidence was that the secure welfare service would expect approximately 20 admissions per month, with an average stay for each admission of approximately 7 days.
The Secure Care Director explained that there are 2 units in the secure welfare service, namely the Secure Location, which is female gender-based, and another male-based unit in a nearby suburb. The Secure Location is located on a residential street and has 7 bedrooms and a maximum capacity of 10 young people at any given time. A floorplan of the Secure Location was tendered during the hearing, which identified the areas of the building accessible to young persons housed there. In addition to the 7 bedrooms, there are a number of common spaces accessible to young persons, including a lounge room, a school room and an arts and crafts space, as well as a large rear yard and a smaller courtyard.
The Secure Care Director deposed that, while a range of security measures and systems are in place at the Secure Location to maintain the safety of young persons housed there, these measures are not comparable to those available at the Youth Justice Centre should a resident engage in behaviours that threaten the safety of other young persons or staff. He explained that under the Children, Youth and Families Act, Department staff are prohibited from using mechanical restraint (such as handcuffs) in such circumstances and may only use physical restraint where it is reasonable and necessary to prevent a child from harming themselves or anyone else.[22] If a young person’s behaviour escalates to a level that cannot be managed, staff are reliant on a police response by calling triple-0. Further, he stated that staff at the Secure Location do not have skills, qualifications or experience specific to the management of high-risk offending.
[22]See Children, Youth and Families Act, s 161B. It should be noted that this provision also authorises the use of reasonable physical force in relation to a child placed in a secure welfare service where such force is necessary to prevent a child from damaging property, is necessary for the security of the secure welfare service or is otherwise authorised by statute or common law.
The Secure Care Director deposed that, while onsite health assessments and medical care are available at the Secure Location, the secure welfare service is not a specialist health or mental health service. As such, in the event of an emergency a young person will generally need to be transferred to hospital. In such circumstances, a rapid risk assessment would be undertaken to determine the number of staff required, the method of transport to be used, whether the use of restraint is permissible and necessary, whether police involvement is necessary, and the processes to be followed should a young person abscond or attempt to do so. However, the Secure Care Director stated that there had not been an occasion in the 4 and a half weeks WD had been at the Secure Location where hospital attendance had been required.
The Secure Care Director further deposed that WD was presently housed in a section of the Secure Location separate from other young persons. His evidence was that it was necessary for WD to remain isolated for the time being, as it could not be determined without a forensic assessment whether WD could safely be in the same areas of the unit as other young persons.[23] The area of the building allocated for WD’s exclusive use was identified on the floorplan of the Secure Location tendered. This area included a bedroom, a hallway, a large “program room” and a courtyard area. The Secure Care Director deposed that this section of the Secure Location is separated from the rest of the property by a strong glass door, through which WD is able to see and attempt to interact with other young persons.
[23]See pars 53-54 below.
The Secure Care Director stated that this arrangement was causing issues which were becoming more difficult to manage as more young persons were placed at the Secure Location. He stated that these issues could not be mitigated or avoided due to the physical layout of the Secure Location. His evidence was that when WD was first placed at the Secure Location, she was the only young person there for a period of about a week. However, since that time there had been other young persons placed at the Secure Location continuously, with the possible exception of a few days. At the time the Secure Care Director gave his evidence, there were 4 young people at the Secure Location, including WD.[24] He expressed a view that WD’s level of arousal was much higher since other young people had arrived at the Secure Location. It was suggested there was a “clear correlation” between WD’s ability to see but not interact with the other young persons placed at the Secure Location and an “escalation in problematic and dangerous behaviours” on WD’s part.
[24]Being 1 less young person than the week before: see par 32 above.
The Secure Care Director also identified what he considered to be further issues in relation to the ability of staff at the Secure Location to safely care for WD while maintaining safe care of other young persons and staff at the facility. He gave evidence that considerations such as the nature of the alleged offending, WD’s patterns and history of behaviour, her escalating level of risk, and her vulnerability and extremely complex needs, taken in combination with the fact that a forensic assessment of WD had not yet been undertaken, were making it extremely challenging to understand and manage WD’s risk to other young persons and staff at the Secure Location.
In this regard, the Secure Care Director gave evidence in relation to what he suggested were recent periods of escalation in WD’s behaviour, based on his review of the daily notes taken by staff at the Secure Location. He referred to the incident on 13 December 2023 where WD intentionally consumed excessive amounts of Ventolin,[25] adding that WD displayed further escalation later that day when she engaged in behaviours such as removing her clothes, defecating, damaging property, making threats and assault.[26] Around the same time, WD and another young person placed at the Secure Location were said to have exchanged verbal threats through an external window. The Secure Care Director also referred to another incident where WD used a piece of plastic from a light switch fitting to scratch herself. However, the Secure Care Director accepted that Department staff were now aware of the risk of WD engaging in behaviours like these, had policies in place to address this risk and would do everything in their power to prevent similar incidents from occurring in future.
[25]See pars 29, 34 above.
[26]See par 33 above.
He also described an incident that occurred on 17 December 2023 in which WD appeared to become fixated on a male staff member at the Secure Location and displayed sexualised behaviours towards him.[27] The Secure Care Director stated that when these behaviours were addressed and boundaries were reasserted, WD responded by making threats to “burn down the building” and “cave in” staff members’ heads. This was said to have necessitated placing WD in a smaller space to further seclude her until she was able to regulate and calm down.[28]
[27]The Secure Care Director was not personally present for this incident and was wholly reliant on the relevant staff members’ notes.
[28]Being a reference to the “seclusion room” described in par 32 above: see also par 59 below.
The Secure Care Director then described a further incident on 18 December 2023 in which WD became threatening and aggressive towards staff in the courtyard area of the Secure Location.[29] During this incident, WD was said to have again made threats to harm staff, including stating something along the lines of, “if I wasn’t in [the Secure Location] you would be in hospital”.
[29]Again, the Secure Care Director was not personally present for this incident and was wholly reliant on the relevant staff members’ notes.
While highlighting these significant difficulties, the Secure Care Director acknowledged that the staff at the Secure Location had a “strong working knowledge” of WD from her previous admissions to the service. Based on this, they had developed de-escalation strategies to be employed when WD was unsettled or “heightened” and had put in place tight routines and structures to keep WD settled, to which she was responding well. Further, the Secure Care Director stated that although he was aware of incidents in the past where WD had physically or verbally assaulted Department staff members, WD had recently displayed better behaviour towards the staff at the Secure Location because of the relationships she had built with them over the time she had been placed there. Furthermore, the Secure Care Director accepted that some preliminary guidance on how best to manage any risk WD might pose to herself and to others in light of the alleged offending and her recent behaviour may be available in the coming days, following the commencement of a forensic mental health assessment of WD.[30]
[30]See pars 53-54 below.
The Secure Care Director deposed that the arrangements that had been put in place to attempt to mitigate and manage any risk posed by WD were significantly reducing the ability of the Department to house and care for other young persons at the Secure Location. Specifically, he stated that allocating a large area of the premises to WD had resulted in a reduction in the space and number of beds available for other young persons. In addition, the high level of supervision and care deemed necessary to manage WD’s risk had resulted in staffing shortages at the Secure Location. The Secure Care Director stated that these space and staffing constraints had in turn placed limitations on the ability of the Department to safely manage admissions and care for other young persons.
The Secure Care Director deposed that this issue had manifested since WD was placed at the Secure Location. On 1 occasion it had resulted in an inability to accommodate a young person in respect of whom an admission was sought, while on another it had resulted in a young person’s admission being delayed, causing them to be held in police custody for several hours. In regards to the former situation, the Secure Care Director stated that alternate plans had had to be put in place for the young person concerned, but the situation had ultimately been able to be managed. At the time he gave evidence, he stated that some current residents were scheduled to exit the Secure Location in the next week, but also noted that some potential new arrivals had been flagged.
Although accepting that capacity constraints such as these were not uncommon at the Secure Location, the Secure Care Director stated that the extended period of time for which WD had been placed at the Secure Location[31] and her specific level of risk had resulted in additional complexities. However, he acknowledged that any capacity issues had been managed to date.
[31]See par 13 above.
Evidence was also adduced from a statewide principal practitioner at the Department (“the Statewide Principal Practitioner”).[32] The Statewide Principal Practitioner has been involved in developing a model of care for WD in the community since late November 2023 and was involved in discussions the previous week between Department representatives in relation to the possible transition of WD to the Youth Justice Centre in the event her bail was revoked. The Statewide Principal Practitioner’s position was that the incident of 13 December 2023[33] had prompted the Revocation Application. She gave evidence that the Revocation Application was made in response to the Department’s concerns about potential security risks and, in particular, the risk of WD absconding if she were required to be transported to hospital.
[32]The Statewide Principal Practitioner has been employed by the Department since 2012 and commenced her current role in August 2021. She holds a bachelor of social science in psychology, a postgraduate diploma in psychology, a master of clinical psychology and a diploma in project management. She has also been a registered psychologist with the Australian Health Practitioner Regulation Agency since 2005.
[33]See pars 29, 34, 43 above.
The Statewide Principal Practitioner stated that this incident had called into question the capacity of the Department to keep WD safe and ensure her needs were being met at the Secure Location. Her evidence was that she (and the Department more broadly) understood this incident to have been prompted by the distress WD was experiencing following the placement of other young persons at the Secure Location. She also referred to the fact that the likely placement of additional young persons at the Secure Location in the coming weeks created a risk that WD would experience further distress. On this basis, the Statewide Principal Practitioner expressed a view that the need for WD to be cared for in an environment where her safety could be assured now outweighed the benefit of her residing in an environment where she would have access to therapeutic services such as the Secure Location. These considerations were said to have underpinned the change in the Secretary’s position from that adopted at the bail hearing on 17 November 2023.[34]
[34]See pars 10-14 above.
During cross-examination, the Statewide Principal Practitioner confirmed that conflict between young persons at the Secure Location was not uncommon, but stated that in light of the offence with which WD had been charged, the making of threats by WD to harm other young persons took on a different dimension. However, she acknowledged that WD remained physically separated from other young persons at the Secure Location and had no access to illicit substances or weapons. Although the Statewide Principal Practitioner acknowledged that WD knew the Secure Location “really, really well”, had formed relationships with the staff in the more than 4 weeks she had spent there, and knew what to expect there, she did not accept that moving to the Youth Justice Centre would be harmful to WD. However, she later conceded that a move to the Youth Justice Centre would potentially risk disrupting WD’s connection with the staff at the Secure Location.
The Statewide Principal Practitioner gave evidence in relation to the forensic mental health assessment of WD which was due to commence on 20 December 2023, the day after the hearing. She deposed that the forensic psychiatrist responsible for this assessment had advised that the initial assessment would take up to 2 hours, with further testing and assessments to be carried out over several weeks to complete a risk profile for WD. A report was expected to be produced within 4 to 6 weeks of the initial assessment. However, the Statewide Principal Practitioner stated that the Department would be requesting preliminary views and observations from the forensic psychiatrist after the initial assessment.
The Statewide Principal Practitioner stated that the forensic psychiatrist had expressed a preference to see WD in a private space with as few people present as possible and “in terms of her authentic self”. The view expressed by the Statewide Principal Practitioner was that better engagement for the assessment would be achieved at the Youth Justice Centre, where it could be complemented by an assessment from the neurodevelopmental team there. However, she accepted that the staff at the Secure Location who had been involved in WD’s care to date would be able to provide advice and information to the forensic psychiatrist. In this regard, she gave evidence that the terms of reference prepared for the forensic psychiatrist included a list of persons who should be consulted in relation to WD’s presentation and engagement techniques, and stated that that list included herself and other Department staff as well as a representative from the Secure Location. When asked if there was a risk that a move to the Youth Justice Centre the day prior to the commencement of the forensic assessment would be disruptive to WD in a way that would affect her engagement with the assessment, the Statewide Principal Practitioner stated that she did not believe there was any such risk, and suggested that the move may actually support WD’s engagement.
In an affidavit affirmed by the Statewide Principal Practitioner, further details were provided of WD’s current care situation in the Secure Location and efforts made by the Department to plan a longer-term model of care for WD in the community. The Statewide Principal Practitioner deposed that in the weeks leading up to the hearing, several steps had been taken in this regard:
(1)Representatives of the Department had identified and inspected a vacant Department-owned property, which had been deemed an appropriate community placement solution for WD pending the making of necessary modifications (“the Bespoke Facility”).
(2)A working group had been formalised to develop a model of care for WD, plan for further assessments of WD’s care and support needs, and develop a transition plan to enable WD’s safe and supported entry into care in the community, of which the Statewide Principal Practitioner had been appointed to lead on behalf of the Department. The Principal Practitioner is also a member of this working group.
(3)Discussions had taken place with a third-party provider in relation to the provision of bespoke care services for WD at the Bespoke Facility, which culminated in the third-party provider expressing a commitment to provide a community care response for WD and to work with the Department to design an appropriate model of care.

The Statewide Principal Practitioner’s position was that the delay in obtaining a forensic mental health assessment for WD at the Secure Location was preventing any progress being made on the Bespoke Facility. She deposed that the results of this assessment would be critical to informing the modifications to the Bespoke Facility necessary to mitigate the risk of harm to WD, those providing her with care and the broader community, as well as the appropriate staffing model to employ. In the absence of the information this assessment would contain about WD’s forensic risk profile and care needs, the extent to which work could be progressed was said to be limited. Although the Statewide Principal Practitioner ultimately accepted that some works could be carried out prior to the completion of this assessment, she stated that there had been no progress as of yet and was unable to confirm when works would commence.
The Statewide Principal Practitioner confirmed that, in the event WD’s bail was revoked and she was transferred to the Youth Justice Centre, planning of WD’s model of care and works on the Bespoke Facility would continue. However, she accepted that if this were to occur, there would be no prospect of WD being transferred from the Youth Justice Centre to the Bespoke Facility for at least 6 weeks, given that works could not be completed without the results of the forensic mental health assessment.
During cross-examination, the Statewide Principal Practitioner was asked about a psychiatric assessment of WD that was conducted when WD was taken to the Royal Children’s Hospital on 16 November 2023 after her arrest. Hospital records from this admission, exhibited to the Statewide Principal Practitioner’s affidavit,[35] indicate that when WD was discharged later that day, a consultant psychiatrist expressed a view that it was not justified for WD to be detained in an inpatient mental health care setting or admitted to an inpatient facility at the time. The Statewide Principal Practitioner accepted that this could be understood as an assessment that WD did not meet the compulsory criteria for inpatient treatment under the Mental Health and Wellbeing Act 2022 (Vic) at the time. Such criteria relevantly include that immediate treatment is required to prevent serious harm to the person or another person.[36]
[35]The Statewide Principal Practitioner was not present at the time of this assessment and was reliant on the information contained in the relevant hospital records.
[36]See Mental Health and Wellbeing Act, ss 143, 180.
The Principal Practitioner also gave further evidence at the hearing on 19 December 2023. She stated that since 17 November 2023, there had been 12 non-critical incident reports made in respect of WD. In addition to the incidents on 13 December 2023,[37] 17 December 2023,[38] and 18 December 2023,[39] she described a further incident on 15 December 2023 in which WD was said to have made threats to kill another young person at the Secure Location. She explained that the incident of 17 December 2023 had necessitated the use of physical restraint in order to escort WD to the “seclusion room”, where she remained for a period of about 30 minutes.[40] The Principal Practitioner stated that WD settled after this and was able to return to her normal routine.
[37]See pars 29, 34, 43 above.
[38]See par 44 above.
[39]See par 45 above.
[40]See pars 32, 44 above.
The Principal Practitioner also gave evidence in relation to the Bespoke Facility. She explained that she had visited the premises on 4 December 2023, and outlined some of the works that had already been identified as necessary, including modifications to the fencing, works to separate the kitchen from the rest of the property, pruning of trees to prevent them being used to abscond or as weapons, modifications to glass, installation of alarms on doors, and reinforcing and strengthening of other doors. She stated that although conversations with contractors in relation to these works were underway, the works had not yet commenced, and she could not confirm when this would occur or any timelines for such.
Evidence was also led from an acting commander at Victoria Police (“the Acting Commander”)[41] about the very limited resources available to Victoria Police in the relevant local government area to transport, or assist with transporting, WD to hospital if required. This included that only 1 divisional van is made available per shift for the whole of the 9 suburbs comprising the relevant local government area. In short, the Acting Commander was unable to give any assurance that Victoria Police would be able to respond to a call for assistance if an emergency arose with respect to WD. Nor would it be possible for Victoria Police to provide the Department with any standby services in relation to the transportation of WD to hospital.
[41]The Acting Commander has been employed by Victoria Police for 29 years. His substantive rank is that of divisional superintendent, covering 3 local government areas.
That said, the Acting Commander accepted that police may be able to respond to a request from the Department for assistance with WD’s transportation, however he emphasised that this would be subject to other priorities at any particular point in time. It was suggested that in the circumstances the appropriate step to take would be to call triple-0, after which the request could be prioritised in the usual way. The Acting Commander described the categorisation system used for prioritisation of such calls, which employs a scale of 1 through 3, with category 1 being the most serious and category 3 being “get there when you can”. As he had no personal knowledge or information on the topic, the Acting Commander was unable to provide any indication of how many jobs in each category would usually be received on any given day, or the standard response times for each category. The Acting Commander said that there would be no ability for police to afford incidents which may arise in relation to WD a level of priority above and beyond a standard request for assistance from the Department, though it was accepted that regard would be given to WD’s circumstances when triaging requests for police assistance.
The Acting Commander also gave evidence about the role that police would play in circumstances where WD was being transported to hospital by ambulance. He stated that the usual practice would be for police to provide support upon the request of Ambulance Victoria, which requests would usually be made in circumstances where the safety of any person is at risk. However, the Acting Commander’s evidence was that in such circumstances, police would not provide transport for the person in question, and would instead follow the ambulance and leave as soon as the person had been admitted to hospital.
Finally, it should be noted that at the commencement of the hearing on 19 December 2023, the Secretary stated that evidence would be led from an officer or officers employed at the Youth Justice Centre concerning the nature of the facility and the services that would be available to WD at that location. This was foreshadowed in light of the fact that none of the witnesses called on behalf the Secretary had direct knowledge of these matters. However, despite an indication from the court that this was an obvious gap in the evidence, counsel for the Secretary subsequently stated that the position had changed and no such evidence would be called. No explanation was provided for this change in position. This resulted in the absence of any probative evidence to support the position adopted by the Secretary that WD’s interests would be better served if her bail were to be revoked and she were to be transferred to the Youth Justice Centre.

C. Legal principles

C.1 Revocation Application

Either the Director or an informant may apply to the court for revocation of bail granted to a person.[42] On such an application, the court may either revoke bail or dismiss the application.[43] Beyond this, the Bail Act does not provide any guidance on how the discretionary power to revoke bail is to be exercised. However, the power to revoke bail must be exercised in accordance with the guiding principles set out in section 1B of the Bail Act.[44] Relevantly, this includes the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[45]
[42]Bail Act, s 18AE.
[43]Ibid, s 18AF.
[44]Re Dukic [2018] VSC 664, [18] (Champion J); Re Gloury-Hyde (No 2) [2018] VSC 520, [13] (Priest JA).
[45]Bail Act, s 1B(1)(a), (b).
However, 1 factor that may logically be of relevance to this assessment is whether a person previously granted bail now presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act, namely an unacceptable risk of endangering the safety or welfare of any person; committing an offence while on bail; interfering with a witness or otherwise obstructing the course of justice in any matter; or failing to surrender into custody in accordance with the conditions of their bail. If the court were so satisfied, it might be appropriate to revoke a grant of bail previously made, notwithstanding that the exceptional circumstances which justified the grant of bail are still in existence and that the conditions ordered upon the grant of bail are being met.
In any assessment of unacceptable risk, the court is required to take into account the surrounding circumstances.[46] The question of unacceptable risk is 1 that must be relative to all the circumstances, particularly the exceptional circumstances which justified a grant of bail. Where the relevant circumstances are particularly compelling, a risk which might in different circumstances be regarded as unacceptable may properly be viewed as acceptable.[47] In this regard, the following observations made by the Court of Appeal in HA v The Queen are of particular relevance to the present circumstances:[48]
As is true of almost every grant of bail, there will remain a degree of risk. Nevertheless, in our respectful view, it was not reasonably open to his Honour to conclude that the risk was unacceptable in the circumstances of this case. Given the powerful considerations to which we have referred — the appellant’s youth and childlike cognitive capacity, his vulnerability in custody and the probability that he will not receive a custodial sentence — what might in other circumstances have been viewed as unacceptable risk had properly to be viewed as acceptable.
(Emphasis added.)
[46]Ibid, ss 3AAA(1), 4E(3)(a).
[47]HA v The Queen [2021] VSCA 64, [6] (Maxwell P and Kaye JA), citing Mokbel v Director of Public Prosecutions (No 3) (2002) 133 A Crim R 141, 143 [10] (Kellam J) and Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 728 [41] (Maxwell P, Vincent and Kellam JJA).
[48]Ibid, [73].
Further, under section 3B(1) of the Bail Act, the court must take into account certain considerations in making a determination under the Act in relation to a child, including a decision to revoke bail,[49] namely:
[49]See Bail Act, s 3 (definition of “bail decision maker”).
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
Further, bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.[50]

C.2 Parens Patriae Application

[50]Ibid, s 3B(3).

The parens patriae jurisdiction of this court derives from the royal prerogative, and was historically exercised by the Court of Chancery.[51] It is directed towards the protection of children and others who are not legally competent to look after themselves,[52] and to this end, empowers the court to make orders relating to the supervision of parents and other guardians and the protection of the welfare of children.[53] In making any such orders, the court’s primary concern should be the welfare of the child involved.[54] It has been said that there are, in theory, no limitations on the breadth and scope of the parens patriae jurisdiction,[55] and it will support the making of “a great variety of orders and orders of great width”.[56] However, the jurisdiction should only be exercised in exceptional cases,[57] and with considerable care.[58]
[51]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 258.2 (Mason CJ, Dawson, Toohey and Gaudron JJ), 279.9-280.1 (Brennan J, dissenting).
[52]Re Beth (2013) 42 VR 124, 147-148 [115] (Osborn JA).
[53]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 280.4 (Brennan J, dissenting), citing Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92.
[54]Re Frances and Benny [2005] NSWSC 1207, [17] (Young CJ in Eq).
[55]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 258.2 (Mason CJ, Dawson, Toohey and Gaudron JJ). See also Re Emma [2023] NSWSC 1088, [16] (Robb J); Re a Patient Fay [2016] NSWSC 624, [23] (Sackar J); Director General of the Department of Community Services (NSW) v Y [1999] NSWSC 644, [99] (Austin J).
[56]AMS v AIF (1999) 199 CLR 160, 189 [86] (Gaudron J).
[57]Re a Patient Fay [2016] NSWSC 624, [23]; Re Thomas (2009) 41 Fam LR 220, 232 [35] (Brereton J); Re Frances and Benny [2005] NSWSC 1207, [18]; Re Victoria (2002) 29 Fam LR 157, 164 [40] (Palmer J).
[58]Re a Patient Fay [2016] NSWSC 624, [23]; Re Thomas (2009) 41 Fam LR 220, 232 [35]; Director General of the Department of Community Services (NSW) v Y [1999] NSWSC 644, [103]; Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, 280.5 (Brennan J, dissenting).
In Re Beth,[59] Osborn JA made the following general observations as to the nature and scope of the jurisdiction:[60]
… the parens patriae jurisdiction:
(a)is very broad;
(b)is essentially a protective one;
(c)is governed in its exercise by the consideration of the best interests of the child;
(d)must be exercised with caution; and
(e)is not excluded by the provisions of the [Children, Youth and Families Act] or the Disability Act [2006 (Vic)].
[59](2013) 42 VR 124.
[60]Ibid, 151 [127].
The circumstances of Re Beth were not dissimilar to those of the present case, in that it involved an application for orders in the court’s parens patriae jurisdiction in relation to a 17-year-old girl in the guardianship and care of the Secretary to the Department of Human Services. Relevantly, an order sought was to the effect that the Secretary to the Department of Human Services was authorised to place the child in a secure welfare service for an indefinite or extended period, notwithstanding the 42-day time limitation set out in section 173(2)(b) of the Children, Youth and Families Act.[61] After surveying the authorities, Osborn JA held that the parens patriae jurisdiction was sufficiently broad to empower the court to make such an order.[62] However, in so finding, Osborn JA emphasised that:[63]
… the very fact that the orders sought do not fall within the legislative scheme which ordinarily governs the secure detention of children, points strongly to the need first to recognise the gravity of the deprivation of liberty which is in issue and the corresponding necessity for its full and adequate justification and secondly to exercise great caution in making the order sought.
After weighing the whole of the evidence, Osborn JA concluded that extended placement in a secure welfare service was in the child’s best interests, and made the orders sought substantially on the conditions proposed by the Secretary to the Department of Human Services.[64]
[61]Ibid, 127-128 [8].
[62]Ibid, 150-151 [124]-[126]. See also Re Emma [2023] NSWSC 1088, [4] (Robb J); Re Thomas (2009) 41 Fam LR 220, 229 [28] (Brereton J).
[63]Ibid, 151 [126], citing Re Thomas (2009) 41 Fam LR 220, 232 [35].
[64]Ibid, 172 [203].
More recently, the power of the court to make orders in its parens patriae jurisdiction directed towards members of the police force was addressed in Re Emma.[65] This case involved an application by the Secretary to the Department of Communities and Justice and the Minister for Families and Communities of New South Wales for orders in respect of a 16-year-old girl in the care of the Minister. The plaintiffs sought an order for the child’s detainment in a secure welfare facility for an undefined period,[66] as well as an order that “authorised and directed” all members of the New South Wales police force to “locate and recover” the child, using reasonable force if necessary, and deliver her to the secure welfare premises in the event she absconded.[67]
[65][2023] NSWSC 1088.
[66]Ibid, [4].
[67]Ibid, [17].
An issue arose on the application with respect to the latter of these orders, namely whether the parens patriae jurisdiction was sufficiently extensive to enable the court to make a “recovery order” of this nature directly or whether it would be necessary for a separate proceeding to be commenced by application to a local court for orders of this kind.[68] After an extensive review of relevant authorities,[69] Robb J concluded that:[70]
If, as is the case, the parens patriae jurisdiction empowers this Court to make orders in favour of the plaintiffs that have the extensive consequences of the secure accommodation orders,[71] there seems to be no logical reason why the Court should lack power to extend and modify the orders to authorise the officers of the [New South Wales] Police Force to search for, find and deliver [the child] to the Secretary or the Secretary’s delegate.
…
It is for these reasons that I consider that the Court has power in the exercise of its parens patriae jurisdiction to make recovery orders directed at officers of the [New South Wales] Police Force, without invoking the artifice of requiring the plaintiffs first to commence proceedings in a local court so that those proceedings may then be removed to this Court for the purpose of the determination of those proceedings.
However, his Honour emphasised that the order was “administrative” in nature and would not operate personally against, or impose personal obligations on, any or all police officers.[72] It was suggested that, in this way, the order may be more appropriately conceived of as an authorisation in favour of members of the police force which served to establish that any officers who provided recovery services in relation to the child in question were acting with the authority of the court, even if the child was not acting in a manner that would ordinarily justify her detainment or the deprivation of her liberty at the time she was recovered.[73]

D. Submissions

[68]Ibid, [33]-[34].

[69]Ibid, [36]-[69].

[70]Ibid, [80], [84].

[71]That is, an order authorising the Secretary to the Department of Communities and Justice to detain the child in a secure welfare facility for an undefined period.

[72]Re Emma [2023] NSWSC 1088, [79].

[73]Ibid, [82].

D.1 Director’s submissions

The Director submitted that if, as the Principal Practitioner’s evidence appeared to suggest, WD’s placement at the Secure Location was no longer available or was otherwise unsuitable, WD would present an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, or failing to surrender into custody in accordance with the conditions of her bail. On this basis, it was submitted that WD’s bail ought to be revoked. However, the Director’s position was ultimately that the Revocation Application would not be pressed in the event that WD was able to remain at the Secure Location.

D.2 Secretary’s submissions

The Secretary’s primary position remained that WD’s bail should be revoked on the basis that the Secretary could no longer ensure the safety of WD, the Department staff who cared for her or the community while WD was residing at the Secure Location. It was submitted that WD’s best interests would be served by remand, as the risks that had arisen could be better managed at the Youth Justice Centre and WD would have priority access to forensic assessment services.
However, in the event that the Revocation Application were dismissed, the Secretary submitted that remaining at the Secure Location would be in WD’s best interests in light of the lack of any other appropriate placement. The Secretary submitted that the authorities, and in particular Re Beth,[74] clearly established that the parens patriae jurisdiction was broad enough to support the making of the orders sought.
[74](2013) 42 VR 124.
Specifically in relation to the order sought in paragraph 2 of the Secretary’s originating motion,[75] the Secretary submitted that the parens patriae jurisdiction was sufficiently broad to support the making of an order directed towards Victoria Police.[76] The Secretary submitted that it was appropriate that any such order provide for WD to remain in the custody of Victoria Police for any period that she was outside the Secure Location, while accepting that the Secretary would continue to have care responsibilities during that time.
[75]See par 24 above.
[76]Citing Re Emma [2023] NSWSC 1088.
It was ultimately submitted on behalf of the Secretary that rather than the language of “deemed to be in the legal custody of the police officer” used in the originating motion,[77] it would be preferable for the order to provide that WD would be “subject to the custody” of a police officer. It was also explained that the reference in paragraph 2 of the originating motion to “a secure welfare service” had been adopted to provide the Department with some flexibility to move WD to the male gender-based facility[78] if that facility were empty and the circumstances necessitated it.
[77]See par 24 above.
[78]See par 37 above.

D.3 WD’s submissions

In relation to the Revocation Application, it was submitted on WD’s behalf that the court could not be satisfied on the available evidence that any of the risks alleged had risen to the level of unacceptable. Further, any such risks had to be balanced against several other powerful countervailing considerations, including WD’s young age, her mental health and cognitive functioning issues, her vulnerability and the real likelihood that a custodial sentence would not be imposed in the circumstances,[79] referring in this regard to the prosecution having to overcome the presumption of doli incapax (or incapable of crime).[80]
[79]Citing HA v The Queen [2021] VSCA 64, [73] (Maxwell P and Kaye JA).
[80]Referring to Director of Public Prosecutions v PM [2023] VSC 560, [10] (Incerti J).
In light of this, it was submitted that it was in WD’s best interests to remain at the Secure Location until works on the Bespoke Facility could be finalised. Counsel for WD submitted that that the orders sought in the Secretary’s originating motion in the Parens Patriae Proceeding ought to be made, with provision for a review of the operation of the orders and the progress made on the Bespoke Facility after a period of 4 weeks.

D.4 Victoria Police’s submissions

In opposing the orders sought by the Secretary, the primary position of Victoria Police was that while all reasonable efforts would be taken to comply with any orders made by the court, the Acting Commander’s evidence demonstrated that it was inappropriate and not feasible for Victoria Police to have any role in the transportation or supervision of WD while she remained at the Secure Location. In this regard, reference was made to the lack of available resources and competing priorities of Victoria Police, the inability to guarantee that members of the police force would respond as and when needed in such circumstances, and the notion that police involvement would not be in the best interests of WD. Instead, it was submitted that any risk in relation to WD should be borne by the Secretary, and if such risk could not be ameliorated, this would go towards revoking bail.
Victoria Police submitted that the order sought in paragraph 2 of the Secretary’s originating motion could be distinguished from the order made in Re Emma.[81] It was suggested that the exercise of the parens patriae jurisdiction in Re Emma was limited to confirming existing powers of the police to search for and apprehend the child in question and return her to the relevant secure welfare service. It was submitted this could be contrasted against the present circumstances, where the order sought would effectively create a power or authority for the police to place WD in their custody while she resided at the Secure Location and remained in the care of the Department.
[81][2023] NSWSC 1088: see par 73 above.
It was also submitted that if an order of the nature sought in paragraph 2 of the Secretary’s originating motion were to be made, it would be most appropriate for police involvement to be limited to facilitating the transportation of WD to hospital to obtain necessary services. It was suggested that any order should make clear that upon arrival at the hospital, WD would return to the care of the Secretary. If such a limitation were not placed on the order, it was submitted that the authorisation for police to use reasonable force should extend to any time WD was in police custody, not only during her transportation.

E. Consideration

For several reasons, I do not consider that the level of risk associated with WD has become unacceptable such that bail granted on 17 November 2023 should be revoked. Instead, the evidence demonstrates that it would be in WD’s best interests to remain at the Secure Location on bail and in the care of the Secretary, at least for the time being until works on the Bespoke Facility have been completed and WD can be transferred there.
It is relevant to note that there has been no breach of any condition of bail by WD.
Further, I cannot be satisfied that WD’s placement at the Secure Location has “become suddenly unavailable”. On the contrary, the evidence of each of the Principal Practitioner, the Operations Manager and the Secure Care Director indicated that, although (as would be expected) there have been some challenges associated with WD’s placement, the Secure Location continues to be available and remains the most appropriate place for WD to reside. Although WD’s extended placement and her particular space and care requirements have resulted in some capacity issues at the Secure Location, the Secure Care Director’s evidence was that issues of this nature are not uncommon in the secure welfare service and have largely been managed to date.[82] Given the high turnover of young persons at the Secure Location and the dynamic and flexible approach adopted, it can be reasonably anticipated that future capacity challenges can continue to be appropriately managed.
[82]See pars 47-49 above.
In this regard, the Secure Location has 7 bedrooms and a maximum capacity of 10 residents. While the area allocated for WD’s exclusive use is not insubstantial, 5 bedrooms are still available and there was evidence that other communal spaces can be used to accommodate other young persons when necessary. There was no evidence to suggest that more than 4 other young persons have been placed at the Secure Location at any point in the 4 and a half weeks that WD has spent there. In relation to staffing shortages, the rostering of additional staff was noted by the Secure Care Director as a possible solution where necessary.
Furthermore, although I do not suggest that the views expressed by the Principal Practitioner and the Statewide Principal Practitioner were anything other than genuinely held, I am not satisfied that WD’s interests would be best served by a transfer to the Youth Justice Centre. Again, I have formed the contrary view for a number of reasons.
First, at the hearing of the bail application on 17 November 2023, evidence was given by the Principal Practitioner on behalf of the Secretary as to why it was said to be more preferable for WD to be placed at the Secure Location than at the Youth Justice Centre. Without being exhaustive, this included that:
(1)WD was already familiar with the Secure Location.
(2)The Secure Location is a therapeutic service designed for vulnerable children at risk.
(3)WD would be cared for at the Secure Location by professionals trained in the complexities of working with children with significant trauma backgrounds, many with whom she has pre-existing relationships.
(4)WD could continue to have contact with and be visited by carers and professionals known to her at the Secure Location.
(5)WD would have access to therapeutic support and medical and mental health assistance at the Secure Location.
This evidence was not directly addressed by the Director or the Secretary in order to seek to demonstrate why any of these considerations no longer applied.
Secondly, the Youth Justice Centre is a detention centre which is necessarily markedly different in its construction and architecture than the Secure Location. It is impossible to say with any specificity in what ways this is so without having been provided with any evidence in respect of the structure, facilities and services available at the Youth Justice Centre. However, the Secure Location, which operates as a therapeutic service with a primary focus on meeting the protection needs of at-risk children,[83] is designed in a way that is conducive to providing care, stability and consistency to children like WD with traumatic histories and special care needs. In the absence of comparative evidence on these matters, I cannot be satisfied that the Youth Justice Centre would provide care at the same level, let alone that it might better meet WD’s needs.[84]
[83]See par 35 above.
[84]See further par 93 below.
Thirdly, WD is very familiar with the Secure Location. In addition to having spent 4 and a half weeks residing there at the time of the hearing, she had also been placed there on several previous occasions. The Statewide Principal Practitioner gave evidence that WD knows the Secure Location “really, really well”, has formed relationships with the staff, and knows what to expect there.[85] Similarly, the Secure Care Director’s evidence was that WD responded better to staff at the Secure Location because of the relationships she has built with them over time.[86] Moreover, it is clear that the staff at the Secure Location have a strong working knowledge of WD and an awareness of the routines, structure and techniques that are effective for her de-escalation and regulation.[87] In my view, it would be highly likely to be disruptive to WD’s wellbeing if she were to be moved to an entirely new and unfamiliar location.[88] It would also be detrimental to WD to lose the day-to-day contact and relationships she has built with staff at the Secure Location. The importance of continuity, stability and predictability for WD was reiterated by several witnesses,[89] and a transfer to the Youth Justice Centre would have the directly opposite effect.
[85]See par 52 above.
[86]See par 46 above.
[87]Ibid.
[88]WD has not spent any time at the Youth Justice Centre beyond a very short visit for approximately 2 to 3 hours on 17 November 2023 before being transported to the Secure Location.
[89]See also par 68 above.
Fourthly, the forensic mental health assessment of WD was due to commence at the Secure Location after the final day of the hearing, being 20 December 2023. There could be no question as to the importance of WD being as comfortable and settled as reasonably possible for this assessment to be conducted successfully and effectively. Despite the views expressed by the Statewide Principal Practitioner,[90] at the very least, there must have been a real risk that if WD had been relocated to an entirely unfamiliar environment such as the Youth Justice Centre immediately before the commencement of this assessment, then the level to which she would be capable of being settled and comfortable would have been adversely affected, and materially so.
[90]See pars 52, 54 above.
Fifthly, in addition to the points referred to, it is of particular significance that no evidence was called by the Secretary which directly addressed the nature of the Youth Justice Centre and the services and supports available to WD there, despite indications at the commencement of the hearing of the Parens Patriae Application that such evidence would be adduced.[91] In circumstances where no direct evidence was before the court, no inference could be drawn to the effect that the Youth Justice Centre would be a more suitable facility for WD than the Secure Location. Indeed, if any inference were to be drawn in the circumstances, it would be to the contrary.[92]
[91]See par 64 above.
[92]Jones v Dunkel (1959) 101 CLR 298, 320.10-321.2 (Windeyer J), quoting from Wigmore on Evidence, 3^rd ed (1940) vol 2, s 285, 162. See also 308.5-308.7 (Kitto J) and 312.6-312.8 (Menzies J).
As regards the concerns expressed in relation to the risk that contact with other young persons at the Secure Location might pose both to WD and these other young persons, while this has presented some issues in recent times, I do not consider that these challenges outweigh the clear benefits in WD remaining at the Secure Location. Other young persons had been placed at the Secure Location for a continuous period of almost 3 and a half weeks at the time of the hearing, and Department staff had been able to manage the situation to that point. Further, the Secure Care Director gave evidence that an average stay in the secure welfare service is approximately 7 days,[93] and statute prescribes the maximum period for any admission as 21 days, with a further 21 day period available only in exceptional circumstances.[94] This means that any particularly tense or acrimonious situations are unlikely to persist for an extended period of time. Furthermore, there is no evidence to suggest that WD will not face these same issues at the Youth Justice Centre.
[93]See par 36 above.
[94]Children, Youth and Families Act, s 173(2)(b).
In addition, although the evidence given by each of the Department staff members was to the effect that the presence of other young persons at the Secure Location has caused WD distress and resulted in increasingly dysregulated behaviours in recent times, the evidence of the Secure Care Director established that the staff at the Secure Location have developed effective systems, routines and strategies to keep WD settled and to de-escalate her when she becomes dysregulated.[95] Further, it could be expected that preliminary views would be able to be shared by the forensic psychiatrist following his initial assessment of WD on 20 December 2023, which would provide Department staff with further guidance on managing any risk WD might pose to herself and others, taking into account the alleged offending and her behaviours.
[95]See par 46 above.
In relation to potential risks in the event WD requires hospitalisation, in light of the evidence given by the Acting Commander,[96] it must be accepted that there is a proper foundation for the Secretary’s concern for the safety of WD, Department staff members and the community more broadly. However, although there can be no certainty about such matters and this consideration is plainly a relevant factor, it is material that at the time of the hearing, WD had not required hospitalisation at any time in the 4 and a half weeks she had been placed at the Secure Location. Further, there was no need for this step to be taken during any of WD’s previous stays at the Secure Location. Accordingly, although the risk remains, this particular factor cannot be given too much weight so as to become a determinative or overly significant factor in considering all the relevant matters before the court.
[96]See par 61 above.
In this regard, although an ambulance was called after the incident on 13 December 2023, it was concerned only with a situation where WD had consumed an excessive quantity of Ventolin and hospitalisation was ultimately not required.[97] The incidents of 15 December 2023,[98] 17 December 2023,[99] and 18 December 2023,[100] and the incident involving the light switch fitting[101] likewise did not create any need for WD to be hospitalised. As was clear from the evidence, the staff at the Secure Location are well aware of the level of risk in relation to WD, and stringent policies and procedures are in place around things like access to weapons, sharp objects and medication to prevent any risk of harm to the young persons residing there, including WD.[102]
[97]See pars 29, 34, 43 above.
[98]See par 59 above.
[99]See par 44 above.
[100]See par 45 above.
[101]See par 43 above.
[102]See pars 43, 52 above.
Ultimately, although there is some weight in each of the concerns raised about WD’s ongoing placement at the Secure Location, I do not consider the risk associated with this to be at an unacceptable level. Further, it is clear that maintaining this arrangement for the time being is in WD’s best interests when compared to the only available alternative – namely, remanding WD to the Youth Justice Centre.
In addition to each of the considerations outlined above, in reaching this conclusion I have had regard to the criteria listed in section 3B(1) of the Bail Act.[103] Each of these criteria clearly weighs in favour of WD’s continued placement at the Secure Location. Most relevantly, this course of action will ensure that remand in custody remains a measure of last resort,[104] it will preserve the relationship between WD and those responsible for her care,[105] it will allow her current living arrangements to continue without interruption or disturbance,[106] it will allow for her continued education without any interruption,[107] and it will minimise the risk of any stigma that WD may face.[108]
[103]See par 68 above.
[104]Bail Act, s 3B(1)(a).
[105]Ibid, s 3B(1)(b).
[106]Ibid, s 3B(1)(c).
[107]Ibid, 3B(1)(d).
[108]Ibid, s 3B(1)(e).
Another relevant matter is that WD’s counsel has raised the fact that the capacity of WD to commit the offence with which she has been charged will be directly in issue.[109] Without expressing any view on the matter (as any evidence to be relied upon is not before the court), there must be a realistic prospect that the prosecution will not be able to establish that a 12-year-old girl with, amongst other things, serious cognitive functioning and intellectual maturity issues had the mental capacity to commit the offence of murder.[110]
[109]See par 79 above.
[110]See Director of Public Prosecutions v PM [2023] VSC 560, [10], [59]-[100] (Incerti J).

Moreover, it is critical that extending WD’s placement at the Secure Location for the time being would only be a temporary arrangement. The evidence of the Statewide Principal Practitioner and the Principal Practitioner was that a longer-term solution for WD’s care is available in the form of the Bespoke Facility, and planning is underway for its preparation.[111] The Bespoke Facility represents a means by which WD might be accommodated on an ongoing basis, and in a manner where some continuity and stability in terms of her care arrangements may be ensured. WD will also be housed independently at the Bespoke Facility, meaning she can receive 1-to-1 care and there will be no risk of unwanted interactions with other young persons causing her to become distressed or dysregulated. In addition, the evidence shows that careful planning is going into the modifications and works to be done to the Bespoke Facility, to ensure that any risk to WD and those providing her care will be minimised to the greatest extent reasonably possible and that WD’s particular needs and vulnerabilities will be accommodated.
[111]See pars 55-56, 60 above.
As such, there is a need for progress to be made on the Bespoke Facility as expediently and efficiently as possible. Although I accept that the report of the forensic mental health assessment of WD will likely contain information that may usefully inform certain aspects of the design of and necessary modifications to the Bespoke Facility, the extent to which this will be the case may have been given too much emphasis by the Department. Indeed, as was ultimately (and properly) acknowledged by the Statewide Principal Practitioner, it must be the case that works on the Bespoke Facility can at the very least be commenced, and most likely substantially progressed, before the final report is made available.
WD has been in and out of the care of the Department since as early as 2011, and had been continually residing at the Secure Location for a period of over 4 weeks at the date of the hearing. Evidently, a great deal of information is already available to the Department about WD, her history of trauma and abuse, her mental health and cognitive functioning issues, her behaviour at the Secure Location, her specific risk factors and the alleged offending. Further, in accordance with her conditions of bail, the Secretary is required to keep WD in a secure welfare service “with lock-up facilities”.[112]
[112]See Children, Youth and Families Act, ss 3 (definition of “secure welfare service”), 44, 173(2)(b).
Using this information, the Department can safely conclude that the Bespoke Facility will require certain features and modifications and commence the relevant works before a complete forensic assessment of WD is made available. Without being even remotely exhaustive, this might include modifying fences, pruning trees, installing locks and alarms on windows and doors, and segregating the kitchen facilities from the remainder of the house. Indeed, the Principal Practitioner’s evidence was that many of these modifications have already been identified as necessary and discussions with contractors are underway.[113] Also, while accepting that the report of the forensic mental health assessment of WD may inform certain aspects of the design of the Bespoke Facility, as was ultimately acknowledged by the Statewide Principal Practitioner,[114] it would seem likely that the forensic psychiatrist will be capable of sharing some preliminary observations with the Department staff members responsible for planning the Bespoke Facility much sooner than the 4 to 6 weeks the full report is anticipated to take to complete.
[113]See par 60 above.
[114]See par 53 above.
In light of the above considerations, the appropriate course is to dismiss the Revocation Application and make orders authorising the Secretary to place WD at the Secure Location for a period of more than 42 days, notwithstanding the time limit set out in section 173(2)(b) of the Children, Youth and Families Act. As is borne out by the authorities,[115] the parens patriae jurisdiction of the court is sufficiently broad to permit the making of an order of this nature, provided the order in question is in the best interests of the child concerned. I am satisfied that this is the case.
[115]See pars 69-71 above.
Indeed, unlike the circumstances under which similar orders were made in Re Thomas[116] and Re Beth,[117] WD has been charged with murder and remand in custody is the only viable alternative course to authorising the Secretary to place her at the Secure Location for a period longer than that contemplated in section 173(2)(b) of the Children, Youth and Families Act. In circumstances where the only other option for WD currently appears to be extended confinement at the Youth Justice Centre, it cannot be realistically said that the proposed order would result in any greater depravation of WD’s liberty. As such, I can more readily conclude that ongoing placement at the Secure Location is in WD’s best interests.
[116](2009) 41 Fam LR 220.
[117](2013) 42 VR 124.
I am also satisfied that making the proposed order will ensure that the Secretary is acting compatibly with WD’s human rights and complying with her obligations under section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[118]
[118]See ibid, 170-172 [196]-[202] (Osborn JA).
As regards the order sought in paragraph 2 of the Secretary’s originating motion,[119] while I appreciate the resourcing and logistical challenges described by the Acting Commander,[120] the proposed order does not purport to place any obligation or duty on members of the police force to respond to a request for assistance in respect of WD. Instead, and similarly to the observations made in Re Emma,[121] it can be appropriately understood as an authorisation in favour of members of the police force to transport and detain WD in circumstances where medical or other services are required, and to use reasonable force to the extent necessary in doing so. In view of the risks that may attend to transporting WD in such circumstances, an order of this kind is necessary to ensure that the safety of WD, the staff and medical personnel involved in her care and the broader community can be maintained.
[119]See par 24 above.
[120]See pars 61-63 above.
[121][2023] NSWSC 1088, [82] (Robb J).
On this basis, and in light of the conclusion reached in Re Emma, I consider that the making of an order substantially in the form sought in paragraph 2 of the Secretary’s originating motion is in the best interests of WD and therefore falls within the scope of the court’s parens patriae jurisdiction.
However, the matter does not end here. During the course of the hearing on 19 December 2023, some concerns were raised as to particular aspects of the orders proposed in the Secretary’s originating motion, which resulted in some modifications to the language ultimately adopted in the orders as made.
First, the lack of any time limitation on the order proposed in paragraph 1 of the Secretary’s originating motion was raised. The order was instead made to operate until 19 February 2024. It was agreed that by this time it could reasonably be anticipated that the report of the forensic mental health assessment of WD would be available and a more informed position could be reached in relation to WD’s placement at the Secure Location, progress on the Bespoke Facility and other relevant matters.
Secondly, the wording of the order sought in paragraph 2 of the Secretary’s originating motion was modified so that a request for police assistance could be made by the Secretary or any person duly authorised by the Secretary.
Thirdly, it was agreed that the language of “health, assessment, or other necessary services” in paragraph 2 of the proposed orders had the potential to create uncertainty. Instead, the more specific wording of “necessary health services, urgent forensic mental assessment or treatment, or other services the Secretary considers necessary” was considered more appropriate.
Fourthly, in light of the amendments proposed by the Secretary during the course of submissions,[122] the wording of paragraph 2 of the proposed orders was modified so as to read that WD would be “subject to the custody” of the police, rather than “deemed to be in the legal custody” of the police.
[122]See par 78 above.
Fifthly, the wording of paragraph 2 of the proposed orders was amended to reflect the fact that, even if WD were to be subject to the legal custody of the police during the time of her removal from the Secure Location, she would remain in the ongoing care of the Secretary at all times. In addition, the words “until WD is returned to a secure welfare service” were added to the end of this sentence, to make clear the point in time at which WD would cease to be subject to police custody.
Sixthly, on the request of counsel for Victoria Police, liberty to apply in respect of the orders and their ongoing operation was specifically extended to Victoria Police.

F. Conclusion

For the above reasons, at the conclusion of the hearing of 19 December 2023 orders were made in the Bail Proceeding dismissing the Revocation Application.
Further, a modified form of the orders sought in the Secretary’s originating motion were made in the Parens Patriae Proceeding, as follows:
1.Until 4.00pm on 19 February 2024, or until further order, the Secretary is authorised to place WD in a secure welfare service, notwithstanding that section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic) authorises the Secretary to place WD in a secure welfare service for a period not exceeding 42 days.
2.At the request of the Secretary or a person duly authorised by the Secretary, all members of Victoria Police are authorised to transport and detain WD if she is removed from a secure welfare service to obtain necessary health services, urgent forensic mental assessment or treatment, or other services the Secretary considers necessary.
3.During the time of removal from a secure welfare service, WD is to be subject to the custody of a Victoria Police officer or officers and the ongoing care of the Secretary until WD is returned to a secure welfare service.
4.For the purposes of the conduct specified in paragraphs 2 and 3 of these orders, all members of Victoria Police are authorised to use reasonable force to the extent necessary.
5.By 4.00pm on 12 February 2024, the Secretary file and serve any forensic mental health assessment report prepared in relation to WD.
6.By 4.00pm on 15 February 2024, the parties file a proposed minute of consent. Absent consent, the parties file and serve any affidavits and written submissions as to whether these orders should continue and whether any modifications should be made to these orders.
7.The Secretary’s application for orders in the parens patriae jurisdiction of this court filed on 19 December 2023 is adjourned to 10.00am on 19 February 2024.
8.There is liberty to apply, including liberty for Victoria Police to apply for further orders to amend the orders made in the parens patriae jurisdiction of the court in this proceeding.

[2024] VSC 14

19 December 2023