Secretary, Department of Family and Community Services & Minster for Family and Community Services & Anor; Re Jamilla [2019] NSWSC 1558 (8 November 2019)

Last Updated: 12 November 2019

Supreme Court New South Wales

Case Name:	Secretary, Department of Family and Community Services & Minster for Family and Community Services & Anor; Re Jamilla
Medium Neutral Citation:	[2019] NSWSC 1558
Hearing Date(s):	11 September 2019
Date of Orders:	11 September 2019
Decision Date:	8 November 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	The balance of the Amended Summons is dismissed. Make no order as to costs.
Catchwords:	CHILDREN AND YOUNG PERSONS – parens patriae jurisdiction – discharge of secure accommodation order – Court required to be satisfied that appropriate alternative transitional arrangements are in place –interaction of guardianship function of the Public Guardian and the Court’s parens patriae jurisdiction – observations on the progress of the young person in the Sherwood House program upon discharge of the secure accommodation order.
Legislation Cited:	Guardianship Act 1987
Cases Cited:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 Re Secretary, Department of Family and Community Services; Re “Lee” [2015] NSWSC 2144
Category:	Procedural and other rulings
Parties:	Plaintiff: Secretary, Department of Family and Community Services & Minster for Family and Community Services Defendant: The Public Guardian Child: Jamilla
Representation:	Counsel: M. England: Secretary, Department of Family and Community Services & Minster for Family and Community Services Solicitors: J. Brouwer: The Public Guardian Jamilla: Laurie Robertson, Independent Legal Representative
File Number(s):	2017/74872
Publication Restriction:	No

JUDGMENT

1. The Court is today making final orders in respect of Jamilla (not the young person’s real name), who has been in the Sherwood House program since September 2017. Since making its initial orders admitting Jamilla to the Sherwood House, the Court has on many occasions between late 2017 and today reviewed the secure accommodation orders by which she has been confined at Sherwood House; utilising the Court’s parens patriae jurisdiction. The relevant content of this jurisdiction has been relevantly elaborated in cases such as Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217.
2. Upon Jamilla leaving the Sherwood program in August 2019, and the discharging of the secure accommodation orders on 11 September, it is now appropriate to record some of her progress. In Jamilla’s case , her progress has been remarkable in many ways.
3. The Court initially made orders in Jamilla’s case because of the severe and permanent effects upon her, due to the physical and sexual abuse she suffered in the very early years of her life. She developed a number of psychiatric conditions that need not be detailed here. But among the consequences of these conditions were multiple episodes of self-harm and absconding from formal structures of supervision. The making of secure accommodation orders in respect of her were necessary for her long term therapeutic benefit.
4. The Sherwood House program has had the great advantage for Jamilla that she has been able to make undoubted progress in areas of her life where she has talent, notwithstanding the disadvantages she faces from the sustained abuse she suffered early in life.
5. For example, prior to entering the Sherwood House program, Jamilla had experienced difficulties in mainstream schooling. Throughout her time in the program she has enrolled in distance education, has been working towards obtaining her High School Certificate (“HSC”,) and has developed an enduring interest in subjects such as ancient history. Whilst her HSC is not complete at the time that she left Sherwood House, her leaving care plan suggests that over a two year period, and with some identified funding assistance, she will have an opportunity to complete this important educational milestone. This is something that would probably not have been realistic before her entry into the Sherwood program.
6. Even as recently as the first half of this year, Jamilla’s school reports have shown her to be engaged in her learning and seeking feedback to improve herself. Jamilla's time in Sherwood House has allowed her to identify and move towards a number of long-term goals. One of these was having face-to-face contact with her father. She has been having weekly visits with her father and developed a positive relationship with him, and with her stepmother and younger sister.
7. Jamilla's contact with her father during the Sherwood House program has led to her becoming aware of her Aboriginal descent. She has now become more conscious of her father's wider family and Aboriginal culture, and she has engaged in the Tharawal Cultural Connections Program. Significant steps have been taken while Jamilla has been in the Sherwood House program to ensure that her Aboriginality is recognised. This will mean that she will be better placed if she needs to, in the future, take advantage of the education and healthcare opportunities that her identification as indigenous may afford her.
8. The Sherwood program has begun to attune Jamilla towards new independent life skills, so that she has better capacity to mix in the community, and undertake the ordinary day-to-day transactions of life in the community from which the Sherwood House program has to a degree removed her.
9. Jamilla has also developed a number of goals for the future including studying for her learner’s driving licence; visiting the country of origin of her stepmother; volunteering in an animal shelter; and participating in more family contact with her immediate and extended family.
10. But there are great challenges ahead for Jamilla as her various psychiatric conditions must continue to be managed and treated.
11. The Court was not prepared to make orders discharging Jamilla from the regime of orders as soon as she turned 18. An application was made on her behalf before she turned 18 for the Public Guardian to be appointed as a guardian of her person. But for reasons not dissimilar to those considered in Re Secretary, Department of Family and Community Services; Re “Lee” [2015] NSWSC 2144 (“Re Lee”), the Court adjourned the proceedings to today to ensure that Jamilla was fully connected with the Public Guardian before discharging the secure accommodation orders.
12. The Court is satisfied that an appropriate guardianship order is now in place. Ms Brouwer a solicitor in the employ of the NSW Trustee and Guardian and instructed by the Public Guardian appeared today. The Court is satisfied that Jamilla is acquainted with the Guardian appointed to her case from the Office of the Public Guardian. The Court is further satisfied that Jamilla’s future stability, accommodation and decision-making are under active administration by the Public Guardian.
13. The Guardianship Act 1987 is expressed in terms that do not affect the parens patriae jurisdiction of the Court. Thus, to the extent that the Court has made orders in respect of Jamilla's care for the reasons that it has, those orders would prevail over the guardianship function: Re Lee, (at [9]).
14. But when the Court is satisfied, as it is, that Jamilla is under appropriate care by the Public Guardian in a form of funded supported independent living, there is no need for the continuation of the active exercise of the Court’s parens patriae jurisdiction. For that reason, the Court will discharge the secure accommodation orders that have been made in the past. There will thus be no subsisting orders in place concerning Jamilla's management now, other than those of the Guardianship Division of NCAT.
15. Jamilla is receiving support from the National Disability Insurance Scheme (“NDIS”) through the administration of its agency, the NDIA. She has been approved for receipt of the packages of support over the next 12 months. This support is renewable every 12 months. It has been achieved in part by the advocacy, on her behalf, by officers of the plaintiff and Ms Robertson, and based on the medical evidence supplied by the medical professionals who have been caring for her.
16. The Court thanks each of the legal representatives involved in these proceedings. Their sensitive and efficient attention to Jamilla’s needs were clear throughout the Court’s administration of the regime of orders over her. Ms M. England, of counsel, appeared for the Secretary, Department of Family and Community Services & Minister for Family and Community Services. Ms L. Robertson appeared as the independent legal representative for Jamilla and Ms J. Brouwer appears for the Public Guardian.
17. During Jamilla’s time in the Sherwood Program, a number of people and organisations were responsible for and involved in her care. Foremost among them were the following, who the Court also wishes to thank.
18. Ms Janice Carroll, Director State-wide Intensive Support Services, Department of Communities and Justice provided oversight of Jamilla’s care, throughout her time in the Sherwood program.
19. Decision-making about Jamilla’s situation was closely managed by her casework team at Metropolitan Intensive Support Services, in the Department of Communities and Justice.
20. Jamilla’s more day-to-day care was provided by her team in the Sherwood Program, in the Department of Communities and Justice. The team included the Manager Client Services, Ms Barbara Hardman, and the Sherwood House Managers, Mr Gavan Baldock and Ms Jade Buchert .
21. Jamilla’s medical and psychological needs were assessed, monitored and treated by clinicians and medical professionals from a number of specialities. These included the Clinical Director Dr Lisa Fahey and clinicians from QUOVUS, a specialist behavioural support agency providing clinical support to the Sherwood team.
22. Jamilla’s psychiatric care came under Dr Kenneth Nunn and staff from the Elver Program, a partnership between the Department of Communities and Justice and NSW Health that supports children in Out of Home Care with complex needs.
23. Medical professionals from the Department of Communities and Justice (Affidavit of Dana McLay affirmed 13 October 2017, [55]) and the Child and Adolescent Mental Health Service, NSW Health.
24. During her time in the Sherwood Program, Jamilla also received support and services to establish her indigenous heritage and obtain certificates confirming her Aboriginality. These came from the Link Up (NSW) Aboriginal Corporation, the Tharawal Aboriginal Corporation and a Tharawal Aboriginal Medical Service.
25. And the NSW Department of Education, Karabar Distance Education program, supported Jamilla’s continuing efforts to keep taking advantage of the educational opportunities offered to her through the Sherwood Program.

Orders

26. Accordingly, the Court makes the following orders and notations:
    • (1) The balance of the Amended Summons filed on 19 December 2018 is discharged.
    • (2) Make no order as to costs.
    • (3) These orders may be entered forthwith.

NOTATION

(a) The Court notes that the non-publication and pseudonym orders made on 10 March 2017 remain in force.

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