Re Kara (No 3)

1. [1]

   These reasons should be read together with, and assume familiarity with, my reasons for judgment dated 17 August 2020 (Re Kara [2020] NSWSC 1083 – the first judgment) and 26 August 2020 (Re Kara (No 2) [2020] NSWSC 1148 – the second judgment).

2. [2]

   Since 12 August 2020, Kara (not her real name) has been confined at the Saunders Unit at the Sydney Children’s Hospital in Randwick for the purpose of medical treatment pursuant to orders made on 12 August 2020.

3. [3]

   The matter has been under ongoing review by the Court since the making of those orders on 12 August 2020, and has been listed for that purpose on 26 August, 11 September and 21 September 2020. Prior to each hearing, the plaintiffs have served updating evidence about a range of subjects, including Kara’s progress and proposals to care for and support Kara in the period after she is discharged from the Saunders Unit.

4. [4]

   Dr Bronwyn Milne, a paediatrician and addiction medicine specialist, has been Kara’s principal treating doctor at the Saunders Unit.

5. [5]

   A report of Dr Milne dated 18 September 2020 describes the treatment provided to Kara as an inpatient of the Saunders Unit as including:

   1. (1)

      pharmacological management of substance withdrawal;

   2. (2)

      psychiatric assessment;

   3. (3)

      neurocognitive, speech and occupational therapy assessment;

   4. (4)

      pharmacotherapy treatment for attention deficit hyperactivity disorder (ADHD) diagnosed during Kara’s admission as inpatient of the Saunders Unit;

   5. (5)

      pharmacotherapy treatment for post-traumatic stress disorder and behavioural disturbance (aggression and agitation);

   6. (6)

      psychological treatment; and

   7. (7)

      sexual assault counselling.

6. [6]

   Following the assessments that Dr Milne and other specialists have undertaken during the past six weeks, Kara’s current condition and diagnosis is:

   1. (1)

      mild intellectual disability;

   2. (2)

      developmental language disorder;

   3. (3)

      speech disorder;

   4. (4)

      ADHD;

   5. (5)

      complex trauma and post-traumatic stress disorder with dissociative symptoms;

   6. (6)

      disorganised attachment; and

   7. (7)

      substance use disorder and polysubstance use.

7. [7]

   These diagnoses and the assessment reports forming the basis for them are the subject of the following reports exhibited to the affidavits of Mariam Abrahams affirmed on 9 and 18 September 2020:

   1. (1)

      Report of Dr Milne dated 18 September 2020;

   2. (2)

      Report of Dr Kelly Jeng (neuropsychologist) dated 17 September 2020;

   3. (3)

      Report of Dr Penny Spencer (Consultant Child and Adolescent Psychiatrist) dated 3 September 2020;

   4. (4)

      Report of Ms Alexandra Blundell (Senior Occupational Therapist) dated 7 September 2020;

   5. (5)

      Report of Ms Laura Doig (speech pathologist) dated 7 September 2020; and

   6. (6)

      Report of Ms Sonya Brophy (senior social worker, Child Protection Unit, Sydney Children’s Hospital) dated 16 September 2020.

8. [8]

   On the basis of three interviews with Kara during her admission at the Saunders Unit, Dr Spencer has formed the opinion that Kara has complex post-traumatic stress disorder and ADHD, and is likely to have a disorganised attachment pattern, but that she does not have a major mood disorder or psychotic disorder.

9. [9]

   Dr Jeng’s neuropsychological assessment of Kara included administering the Wechsler Intelligence Scale for Children (5th edition) and the Wechsler Individual Achievement Test (3rd edition). In her report dated 17 September 2002, Dr Jeng concluded:

10. [10]

    Dr Jeng made the following recommendations:

11. [11]

    Ms Blundell assessed the impact of Kara’s mental health status on her daily life. Ms Blundell’s opinions set out in her report dated 7 September 2020 include that:

12. [12]

    Ms Doig met with Kara on three occasions during her admission at the Saunders Unit in order to assess Kara’s speech, language and communication needs. In her report dated 7 September 2020, Ms Doig concluded:

13. [13]

    Ms Doig recommended that Kara receive ongoing speech therapy and that she be supported to engage in an educational setting when appropriate. Ms Doig also recommended that Kara’s language skills be re-assessed when her mental health diagnosis and medications are more stable to ensure that assessment results are accurate.

14. [14]

    According to Dr Milne’s report dated 18 September 2020, Kara is receiving medication to manage her ADHD, post-traumatic stress disorder and aggression. Kara is also continuing to utilise Nicotine Replacement Therapy.

15. [15]

    Dr Milne describes Kara as having made “considerable improvements” and “incredible progress” during her inpatient admission at the Saunders Unit. However, Dr Milne reports that Kara continues to have periods of unpredictable, challenging and aggressive behaviours and she requires “a moderate level of support and supervision by the multidisciplinary team on the Saunders Unit to help with emotion regulation, redirection and safety”. The challenging behaviours described by Dr Milne include shouting, banging on doors and the staff window, pacing and using offensive and threatening language. Dr Milne reports that these behaviours can be triggered by Kara’s needs not being met immediately, things not going as planned, or if Kara experiences challenges negotiating with other young people on the ward.

16. [16]

    Dr Milne considers that the mild intellectual disability with which Kara has now been diagnosed (emphasis in original):

17. [17]

    At the time of Kara’s admission to the Saunders Unit, Dr Milne envisaged that Kara would require inpatient treatment for approximately six weeks in order for Kara to undertake medically supervised and supported withdrawal from the substances she had been misusing for approximately four years, undertake comprehensive assessments to determine her needs and to be sufficiently stable to be discharged into a placement where she could continue to receive support for her needs.

18. [18]

    From the outset, Dr Milne has recommended that Kara would need to be placed in secure accommodation after being discharged from the Saunders Unit, and receive ongoing care and support from a multidisciplinary team and have a strong cultural component to her care. Dr Milne emphasised that, even after completing medically supervised substance withdrawal in the Saunders Unit, Kara would be at high risk of relapse in the short and medium term and would need to be supported to continue building on the steps towards full recovery. The steps taken as an inpatient in the Saunders Unit would be critical, but would only be the beginning of the path to recovery.

19. [19]

    The report of Dr Spencer dated 3 September 2020 to which I have already referred above stated:

20. [20]

    Dr Milne is satisfied that Kara is now ready to be discharged from the Saunders Unit. The proposed discharge date is 24 September 2020. Dr Milne has made the following recommendations:

21. [21]

    Ms P referred to in Dr Milne’s report above is Kara’s mother. Pursuant to pseudonym orders made on 12 August 2020, Kara’s mother is known in this proceeding as Ms P.

22. [22]

    Ms Mariam Abrahams is an out-of-home caseworker employed with the Department of Communities and Justice (the Department). Ms Abrahams has had day-to-day casework responsibility for Kara since April this year. Ms Abrahams affirmed affidavits on 9 and 18 September 2020 explaining certain aspects of the arrangements proposed by the plaintiffs for Kara’s placement after her discharge from the Saunders Unit. Ms Abrahams’ affidavit affirmed on 18 September 2020 exhibited minutes of a meeting held on 16 September 2020 at which the proposed placement was discussed in detail by Ms Abrahams and other representatives of the Department, Kara’s mother, the independent legal representative for Kara (Ms Kelso), representatives of Safe Places Community Services Ltd (Safe Places) and a representative of the Aboriginal organisation that has been supporting Kara in maintaining her connection to Aboriginal culture both prior to and during her admission in the Saunders Unit (Kinchela Boys Home Aboriginal Corporation, or KBH).

23. [23]

    In her affidavit affirmed on 9 September 2020, Ms Abrahams deposed that the Department was considering the possibility of Kara entering a placement operated by Safe Places. Certain other organisations had been approached by the Department, but had been unable to offer the services required for Kara.

24. [24]

    By the time of the hearing on 11 September 2020, Safe Places had very recently accepted the referral from the Department to provide a secure placement for Kara.

25. [25]

    At the hearing on 21 September 2020, the plaintiffs tendered a copy of the certificate of accreditation of Safe Places as a designated agency under the Children’s Guardian Act 2019 (NSW) (the Guardian Act) for a period of three years, expiring 22 February 2022, together with the notice of conditions of accreditation.

26. [26]

    Section 72 of the Guardian Act defines “designated agency” as meaning (relevantly) an organisation that arranges the provision of out-of-home care and is accredited under the regulations as a designated agency to provide or arrange such care. The expression “out-of-home care” has the same meaning in the Guardian Act as in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), namely residential care and control of a child or young person that is provided by a person other than a parent of the child or young person and at a place other than the usual home of the child or young person (see s 135 of the Care Act).

27. [27]

    The accreditation process, including the matters to be taken into account by the Minister in approving standards and criteria for accreditation on the recommendation of the Children’s Guardian, are set out in Division 4 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (the Care Regulation). Clause 48 of the Care Regulation provides that the matters to be addressed by the approved accreditation criteria are to include:

    1. (1)

       the applicant’s assessment procedures for determining whether a person is suitable to be an authorised carer (including probity testing);

    2. (2)

       the training provided to authorised carers;

    3. (3)

       the supervision provided to authorised carers; and

    4. (4)

       what provision is made for the involvement of children and young persons in the making of decisions that affect them.

28. [28]

    The conditions of the accreditation of Safe Places as a designated agency that were tendered at the hearing on 21 September 2020 include:

    1. (1)

       Safe Places must verify online the Working with Children Check clearance (or, in the absence of clearance, an application for clearance) in respect of each staff member and volunteer in child-related work or in a child-related role, the principal officer of Safe Places and each member of the governing body of Safe Places, before that person commences their employment or engagement;

    2. (2)

       Safe Places must undertake a National Police Check for all employees, contractors and volunteers in child-related work in residential care; and

    3. (3)

       Safe Places must maintain records of practice relevant to the safety, welfare and well-being of children and young persons placed with Safe Places. Those records must be made available to the Children’s Guardian for inspection upon request.

29. [29]

    At the hearing on 21 September 2020, the plaintiffs also tendered a 23 page document bearing the logo and name of Safe Places entitled “Integrative Practice Framework”. The document describes Safe Places’ approach to providing individualised therapeutic residential services in Australia. The Integrative Practice Framework is described as “a flexible and adaptable model which ensures each young person in our care is treated individually and with regard for his or her particular culture, developmental history and current care needs”.

30. [30]

    The document describes six key “practice domains” that are incorporated in the Integrative Practice Framework and inform the approach to care provided for young persons: Attachment, Trauma, Competence, Family, Home and Organisation.

31. [31]

    In relation to trauma, the document states:

32. [32]

    On the morning of the hearing on 21 September 2020, I had the opportunity to inspect the proposed secure placement premises for Kara to be operated by Safe Places. I was accompanied by my Tipstaff. Also in attendance at the time of the inspection was the solicitor for Kara, the solicitor for the plaintiffs, representatives of the Department and representatives of Safe Places. I was informed that the second defendant had been invited to attend.

33. [33]

    The premises are a newly built home in south western Sydney with four bedrooms, two bathrooms and a lock up garage, a covered outdoor terrace and a small, fenced backyard. It was explained to me that two of the bedrooms will be dedicated to Kara’s use – one as a bedroom and one as a sensory room. One of the bathrooms will also be for Kara’s sole use. The other two bedrooms are for use by the Safe Places youth workers and case managers, as it is intended that there will be two Safe Places staff present with Kara at any given time during the day or night (subject to the necessity and adequacy of this level of staffing being the subject of ongoing review throughout the proposed placement). There is a pleasant combined kitchen and living room that looks out onto the covered terrace and backyard. The home is air-conditioned.

34. [34]

    There is a concern that Kara may try to abscond from the premises, partly due to her emotional dysregulation that has been identified in the medical reports to which I have referred above, partly due to a strong desire to see her mother and partly due to previous instances before Kara was admitted to the Saunders Unit. To address that concern, there are locks on all doors and windows in the premises. The windows are able to be locked in an open position that permits airflow but is too small for a person to pass through. Whilst there are locks on all of the doors, a higher than usual fence is in the process of being installed around the backyard so that Kara will have times where she is able to enjoy the outdoor areas of the home without this presenting a risk of her absconding from the premises.

35. [35]

    Senior youth workers from Safe Places have been visiting Kara at the Saunders Unit in the past week to discuss her proposed new home with her. In discussions with Kara, they have agreed to arrange a punching bag for Kara to do boxing, a table tennis table, a beanbag, badminton set and some soft cushions for the home.

36. [36]

    As I mentioned earlier, it is intended that there will be two Safe Places staff present with Kara at any given time during the day or night, although the necessity and adequacy of this level of staffing will the subject of ongoing review throughout the proposed placement. Minutes of meetings exhibited to Ms Abrahams’ affidavit of 18 September 2020 refer to the Safe Places staff including two Aboriginal persons. I was informed at the inspection of the premises on 21 September 2020 that one of those persons is to be working directly with Kara as one of her team of case workers whilst the other will have involvement in Kara’s care (without being part of the team working at the secure placement premises).

37. [37]

    In her affidavit affirmed on 9 September 2018, Ms Abrahams deposed that Kara will continue to receive psychological counselling from CICADA during the proposed placement. This is the multidisciplinary adolescent drug and alcohol rehabilitation service operating within the Sydney Children’s Hospitals Network which has been providing services to Kara during her admission at the Saunders Unit. At the hearing on 21 September 2020, the Court was informed that the services to be provided by CICADA to Kara as an outpatient are to include drug and alcohol counselling, sexual assault counselling, trauma-informed psychological intervention and work to assist with emotional regulation. Kara has established relationships with these treating professionals during her stay in the Saunders Unit and she has made “incredible progress” (to adopt Dr Milne’s words) under their care so far.

38. [38]

    At the hearing on 21 September 2020, the Court was informed that, during the proposed placement, Kara will also receive ongoing speech therapy and occupational therapy. Again, this is to be provided by CICADA, which has been providing this therapy for Kara as a Saunders Unit inpatient.

39. [39]

    At the hearing on 21 September 2020, the Court was informed that an application for funding for Kara under the National Disability Insurance Scheme is in progress, but the provisions of the abovementioned services during the proposed placement is not dependent on the outcome of that funding application. It is proposed that those outpatient services commence within a week of Kara’s discharge from the Saunders Unit and continue on a regular basis.

40. [40]

    In her affidavit affirmed on 9 September 2020, Ms Abrahams deposed that “QUOVUS” would provide clinical supervision support for Kara during the proposed placement, including preparing a behaviour support plan to be implemented by Safe Places staff. At the time of the hearing on 21 September 2020, that plan was still under preparation. The Court was informed that QUOVUS is a private company specialising in the provision of behaviour support and planning for young persons with high needs, including in the context of trauma-informed therapeutic placements such as the proposed placement for Kara. For example, QUOVUS provides behaviour support services for all young persons accommodated in the Sherwood House program. Given that Kara has only been an inpatient of the Saunders Unit for approximately six weeks and many of her needs have been identified during neuropsychological and other assessments undertaken during that time, it is understandable that the behaviour support plan is still under development.

41. [41]

    Kara has not attended school for many years. The manner in which she will be educated during the proposed placement after her discharge from the Saunders Unit is still under consideration, at this stage. The plans for her education must be informed by the recent assessments referred to above. Kara has expressed an interest in attending TAFE, and the Court was informed at the hearing on 21 September 2020 that the plaintiffs wish to develop a plan to support that goal. At this stage, no specific plan has been developed. The plaintiffs have recently learned that Kara will not be able to attend school at Sherwood House as a day pupil, as had been envisaged at an earlier stage of planning the proposed placement. The plaintiffs have also only recently received the assessments of Kara’s intellectual functioning. During the initial weeks of the proposed placement (which coincide with school holidays, and Kara getting to know the Safe Places carers and settling into the new premises), it is proposed that Kara will undertake some educational activities with the Safe Places carers. The Court was informed that the plaintiffs are considering arranging a private tutoring service for Kara but, as I understand it, that is only one option under consideration at this stage. I note that Dr Jeng recommended an individual learning and behaviour plan for Kara if she wished to re-engage in the educational system. Kara clearly does wish to re-engage.

42. [42]

    Dr Jeng also recommended engaging Kara in activities she finds enjoyable to support her self-esteem and build competency in a variety of areas. Although Kara will not be able attend school at Sherwood House, the Court was informed at the hearing on 21 September 2020 that Kara will able to attend extracurricular activities at Sherwood House on a regular basis. As I understand it, this is intended to provide Kara with an opportunity to undertake activities that she enjoys, in addition to being able to socially interact with other young persons.

43. [43]

    As I have mentioned earlier, there is evidence before the Court that equipment is to be purchased for the proposed placement premises to facilitate Kara doing activities she enjoys at the premises: a punching bag for boxing, a table tennis table and a badminton set.

44. [44]

    A schedule for Kara’s activities for the first ten days of the proposed placement was tendered at the hearing on 21 September 2020. It provides for a range of activities, including personal interest activities to be chosen by Kara, art and music, educational activity, and life skills activities such as cooking and tending to a vegetable garden.

45. [45]

    Although the proposed placement is a secure placement, the activity schedule also provides for some activities in which Kara will be interacting with the community within the first ten days. For example, it provides for a visit to a salon for a haircut and nail treatment.

46. [46]

    That is to say, even in the initial days of the proposed placement, it is not proposed that Kara be confined to the proposed placement premises at all times. During my inspection of the premises on 21 September 2020, the Safe Places representatives spoke about the importance of providing Kara with some level of community interaction, and of increasing the level of community interaction over time, with a view to Kara being able to interact with the community safely, without restrictions, by the time she reaches the age of 18 years in January 2022. At the hearing on 21 September 2020, counsel for the plaintiffs informed the Court that the plaintiffs support this approach to increasing Kara’s interaction with the community during the proposed placement. The Court was informed that the nature and frequency of community interaction will be the subject of regular review, which will involve consultation between representatives of the Department, representatives of Safe Places, and members of Kara’s treating team at CICADA. The decision about the appropriate nature level of community interaction will be made by the Secretary of the Department (or their nominee) following that consultation.

47. [47]

    It is clear from the medical reports to which I have referred above that the current proposed restrictions on Kara’s interaction with the community are informed by the professional advice concerning the importance of Kara being supported after her discharge from the Saunders Unit to develop the ability to regulate her emotions, control impulses and aggressive behaviours and make good decisions for herself so that she is at lower risk of harm to herself in the community through relapse into substance misuse or other misadventure.

48. [48]

    For these reasons, Kara’s interactions with the community are initially proposed to be in the company of a Safe Places case worker.

49. [49]

    As I have referred to earlier, Kara has a strong desire to be with her mother. Prior to Kara’s admission to the Saunders Unit, there were incidents in which she was verbally and physically aggressive towards her mother. As a result of one such incident, Kara is currently the subject of an Apprehended Violence Order for the benefit of her mother (see [15] of the first judgment). Notwithstanding these incidents, Kara and her mother have a very close relationship. This is clear from the manner in which Kara and her mother have each spoken of each other and their desire for contact with one another, and from photographs of their contact visits in the Saunders Unit that have been included in the plaintiffs’ evidence.

50. [50]

    Kara currently has telephone contact with her mother twice daily, and face-to-face contact with her mother three times per week, in the Saunders Unit. The telephone and face-to-face contact has been supervised by Saunders Unit nursing staff and representatives of the Department. The Saunders Unit have recommended that contact be supervised in order to ensure that nursing staff are able to support Kara in regulating her emotional response to the contact and to offer strategies for Kara to de-escalate if her emotions become heightened or if she becomes distressed. On the occasions when Kara has had difficulty managing her emotions, this has had an adverse impact on other patients in the Saunders Unit. According to an email from Dr Milne to Ms Abrahams dated 11 September 2020, that impact has included other patients becoming distressed, self-harming and experiencing increased suicidal ideation.

51. [51]

    The plaintiffs propose that this contact pattern (including the supervision of contact to assist Kara regulate her emotional responses) will continue for the first week of Kara’s proposed new placement. However, the contact arrangements will be reviewed on a daily basis and revised depending on how Kara responds emotionally to the new placement. In her affidavit affirmed on 18 September 2002, Ms Abrahams deposed that she is hoping to increase face-to-face contact between Kara and her mother, and also introduce other family members, soon after Kara settles in to the new placement. Ms Abrahams deposed that the aim is to transition to unsupervised face-to-face contact.

52. [52]

    Prior to her admission to the Saunders Unit, Kara had established connections with KBH. During her stay at the Saunders Unit, Kara has received daily visits from family caseworkers at KBH to support Kara in maintaining her connection to her Aboriginal culture. It is proposed that KBH will visit Kara three times per week in the proposed new placement.

53. [53]

    As I have mentioned above, Aboriginal case workers from Safe Places will also be involved in Kara’s care during the proposed new placement.

54. [54]

    The plaintiffs have consulted with Kara’s mother about additional ways in which Kara’s cultural needs as an Aboriginal woman can be supported during the proposed secure placement. Kara’s mother would like Kara’s sensory room at the secure placement home to include a cultural wall to be designed by Kara’s father. Kara’s mother has suggested that Kara be involved with the Koori Radio Program and with a program known as Tribal Warrior. She has also suggested that Kara participate in weaving with KBH.

55. [55]

    The plaintiffs have had to work very quickly to prepare the home for Kara’s proposed arrival on 24 September, having only received confirmation on 9 September that Safe Places was able to operate the proposed secure placement for Kara. Since 9 September 2020, the plaintiffs and Safe Places have been engaged in making the premises secure, consulting Kara about aspects of the furnishings and arranging the furnishings and making certain adjustments to the kitchen to ensure that the premises are safe for Kara.

56. [56]

    It is understandable that the plaintiffs have not yet had an opportunity to explore Kara’s mother’s proposals for cultural support, but they are committed to doing so. In her affidavit affirmed on 18 September 2020, Ms Abrahams deposed that Safe Places will work with Kara’s mother, other family members and KBH to ensure that Kara’s cultural needs are being met and that consideration will be given to Kara’s mother’s proposals once Kara is settled in the secure placement and it is safe for her to participate in activities. During my inspection of the proposed placement premises on 21 September 2020, the Safe Places representatives advised that they wanted to consult Kara as to which wall she would like to have dedicated to the proposed cultural wall.

57. [57]

    The orders sought by the plaintiffs at the hearing on 21 September 2020 authorise the confinement of Kara at the proposed secure placement premises, noting that the purpose is to ensure that Kara receives ongoing multidisciplinary support and therapy, engages in meaningful and safe relationships, engages in trauma informed care, education or workplace training, sexual assault counselling and drug and alcohol counselling as recommended by Dr Milne and/or Dr Spencer of the Sydney Children’s Hospital Network.

58. [58]

    The orders sought by the plaintiffs also authorise Kara being conveyed to the proposed secure placement premises, and the use of reasonable force (if necessary) to convey her to those premises (or to return her to those premises) and to ensure that she remains there.

59. [59]

    During the hearing, I raised with counsel for the plaintiffs that these proposed orders required some adjustment to reflect the fact that the proposed confinement is tempered by interaction with the community to be facilitated by Kara’s case workers as I have referred to above. The plaintiffs did not oppose adjustments to the proposed orders to reflect this.

60. [60]

    The plaintiffs did not seek orders authorising the ongoing psychological intervention, counselling and therapy to be provided to Kara during the proposed secure placement, or the proposed restrictions on contact between Kara and family members. The plaintiffs submitted, and I accept, that those matters fall within the scope of the parental responsibility exercised by the Minister for Families, Communities and Disability Services (the Minister) pursuant to the orders made by the Children’s Court of New South Wales on 26 March 2020. It goes without saying that decisions about contact between Kara and her mother in the exercise of the Minister’s parental responsibility need to be made having regard to the fact that the Children’s Court allocated parental responsibility for Kara for the aspects of culture and religion to Kara’s mother, and culture is closely connected with family.

61. [61]

    Nevertheless, the evidence about the psychological intervention, counselling and therapy to be provided to Kara during the proposed secure placement, the proposed restrictions on contact between Kara and family members, and the proposed approach to facilitating Kara’s interactions with the community, is relevant to the Court’s consideration of whether the proposed confinement orders are necessary for Kara’s protection and the promotion of her welfare.

62. [62]

    At times during this proceeding, Kara has expressed a sense of gratitude that she has been confined in the Saunders Unit and has thereby been given the opportunity to withdraw from the substances she was using prior to her admission.

63. [63]

    However, it is appropriate to recognise that, Kara has expressed a sense of outrage at her confinement at other times. In particular, a message written by Kara and tendered at a hearing on 11 September 2020, stated:

64. [64]

    Kara has not been confined at the Saunders Unit as a result of any criminal wrongdoing or with a view to depriving her of rights or cultural connections that she has as an Aboriginal person. Rather, Kara has been confined for the purpose of medical treatment pursuant to orders made by the Court in the exercise of its parens patriae jurisdiction explained in [62]–[67] of the first judgment.

65. [65]

    The decision to confine Kara to the Saunders Unit for treatment involved a very serious interference with her liberty. However, I was satisfied that this was necessary for her protection, having regard to her exceptional circumstances: see [68]–[73] of the first judgment. Kara’s circumstances, and the lack of any other options for her effective treatment and rehabilitation, are described in detail in [16]–[40] of the first judgment.

66. [66]

    At the hearing on 21 September 2020, Ms Kelso appeared as independent legal representative for Kara and also facilitated Kara addressing the Court directly.

67. [67]

    Kara made the following points when she addressed the Court:

    1. (1)

       Kara does not wish her telephone calls to be supervised;

    2. (2)

       Kara wants to be able to use her own phone to take photos;

    3. (3)

       as she is 16 years old, Kara wants to be able to activate a key card to access Centrelink benefits;

    4. (4)

       Kara wants to be able to visit her mother at her mother’s home;

    5. (5)

       Kara also wants to be able to visit her siblings, particularly one of her sisters who is currently receiving mental health care;

    6. (6)

       Kara accepts that she will live with carers in a home, but does not want to be locked in because that is “too much pressure”;

    7. (7)

       she has not done anything wrong, so Kara considers that she should be allowed to go out for shopping trips with her mum and her carers and should have one more chance be able to demonstrate that she can go into the community and does not need to be locked in a house. Kara said that she could not demonstrate this before because she didn’t know how to be safe in the community and needed guidance. Now that she has that guidance, she should be allowed to show that she can manage.

68. [68]

    Ms Kelso submitted that Kara wanted to prove that she can maintain the changes she has made in the Saunders Unit over the past six weeks. Kara’s views about not wanting to be confined are understandable given her strong desire to have time with her mother. She has found the constraints on her contact with her mother difficult during her admission to the Saunders Unit. In relation to the plaintiffs’ proposed weekly plan for Kara’s initial ten days in the proposed placement, Ms Kelso submitted that Kara hoped that her mother may be able to accompany her to her appointments at CICADA.

69. [69]

    Ms Kelso remarked positively on the information provided by Safe Places at the proposed placement inspection concerning increasing Kara’s interaction with the community during the course of the placement, with the objective of facilitating Kara’s independent in the community by the time she reaches the age of 18.

70. [70]

    Finally, Ms Kelso submitted that, even though Kara will find the proposed secure placement difficult initially, it is the most appropriate arrangement for Kara’s needs at this stage. Ms Kelso submitted that there should be a further hearing for the Court to review the position in approximately three weeks’ time.

71. [71]

    Ms P appeared for herself and made submissions and comments concerning the proposed secure placement. The following is a summary of those submissions and comments, together with my observations about them:

    1. (1)

       Ms P asked whether the Department was proposing to keep Kara in secure care until she reached the age of 18 years;

    2. (2)

       Ms P asked whether the Department were conducting experiments on Kara. Ms P referred to an occasion on which she said that a psychiatrist from the Department had driven Kara to a car park in Parramatta and let her out of the car for 20 or 30 minutes in order to see what Kara would do. Ms P said that Kara got into another car with several young men. Ms P said that the psychiatrist had later returned Kara home, and had told Ms P that this had been “an experiment”;

    3. (3)

       Ms P expressed concern about Kara being segregated from, and lacking interaction, with other young people;

    4. (4)

       Ms P objects to her telephone calls and visits with Kara being monitored. She said that his makes her feel like a criminal, and makes her feel that the Department does not trust what she is doing with her own daughter;

    5. (5)

       Ms P also objected to CICADA continuing to provide treatment, counselling and therapy to Kara, for two reasons. First, Ms P said that Kara had not been allowed to choose the doctors and therapists treating her. Second, Ms P believes that CICADA has formed a bad opinion of Ms P based on evidence adduced by the plaintiffs at the first hearing in this matter suggesting that Ms P had supplied drugs to Kara on a previous occasion. As recorded in the second judgment, that suggestion was withdrawn at the second hearing. Ms P complained that the Department had promised to tell CICADA that it had withdrawn that allegation against Ms P, but Ms P had not seen any evidence that the Department had done so. Ms P said that the Department had previously purchased and provided cigarettes to Kara, but had failed to mention this in their evidence presented to the Court;

    6. (6)

       Ms P expressed dissatisfaction with the assessment of Kara’s intellectual functioning, and disputed the diagnosis that Kara has a mild intellectual disability. Ms P says that Kara is smart, and she should be re-assessed when she has had an opportunity to catch up on school she has missed;

    7. (7)

       Ms P submitted that the proposed weekly plan for the initial ten days of Kara’s proposed placement was too structured and included activities that Kara would not enjoy. Ms P submitted that the best thing would be for Kara to attend TAFE as soon as possible.

72. [72]

    I acknowledge that Kara does not wish to be confined to the proposed secure placement premises and wishes to be able to leave when she chooses to do so in order to visit her mother and her siblings and to go on outings. The plaintiffs’ proposed order authorising the confinement of Kara to the secure placement premises, subject to community interaction facilitated by Safe Places, involves a serious interference with Kara’s liberty. The question is whether this interference with her liberty is necessary in all the circumstances for Kara’s protection and the promotion of her welfare: see [62]–[67] of the first judgment and the authorities there cited.

73. [73]

    I also acknowledge that both Kara and her mother find it difficult to have their telephone and face to face contact supervised and share a strong desire to have unsupervised contact.

74. [74]

    As I have mentioned above, the Court is not making orders specifically approving or disapproving of the plaintiffs’ supervision of contact between Kara and her mother. However, the supervision will be made possible by reason of Kara’s confinement to the secure premises that the Court is asked to authorise in the exercise of its parens patriae jurisdiction. The medical assessments referred to earlier in these reasons establish that Kara has difficulties regulating her emotions. The purpose of supervising contact between Kara and her mother is to support Kara in regulating her emotional response to the contact.

75. [75]

    Ms Abrahams’ evidence acknowledges the desirability of moving towards unsupervised contact (and also contact with a wider range of Kara’s family members), and the plaintiffs have informed the Court that they will be reviewing contact arrangements on a daily basis. In my view, this commitment on the part of the plaintiffs appropriately recognises the importance of making prompt adjustments to the contact arrangements as soon as such adjustments become appropriate to Kara’s needs. It is Kara’s needs, rather than Ms P’s feelings, that are the determinative consideration.

76. [76]

    It is to be expected that Kara would like to have greater access to and use of her mobile phone. This is a matter of detail that is well within the scope of the Minister’s parental responsibility. To the extent that lack of access to her mobile phone is restricting the frequency and manner of Kara’s contact with her mother, I have addressed that subject immediately above.

77. [77]

    I acknowledge Ms P’s question about whether the Department is proposing to keep Kara in secure care until she reached the age of 18 years. Any orders made will be the subject of ongoing review by the Court and so it is not possible at this stage to say whether, or to what extent, any orders made will continue until Kara is 18 years old.

78. [78]

    I note Ms P’s question about whether the Department were conducting experiments on Kara. The Court’s task in the exercise of its parens patriae jurisdiction in this proceeding is to consider Kara’s current circumstances and what is necessary at this time for her protection and welfare. The Court does not have sufficient evidence to make findings about events alleged to have occurred in the past. Such matters are not within the scope of the plaintiffs’ application for the Court to exercise its parens patriae jurisdiction. It suffices to say that the plaintiffs’ proposed secure care orders are informed by all of the medical evidence to which I have referred above. I have not discerned any basis within that evidence for concern that the proposed secure placement, or the support to be provided to Kara during the proposed placement, is any kind of experiment.

79. [79]

    I note the concern expressed by Ms P about Kara being segregated from, and lacking interaction, with other young people. This aspect of Ms P’s submission did not engage with the medical assessments identifying the challenges that Kara faces in interacting with other young people and the support that she requires to build relationships with her peers. As I have already referred to above, it is proposed that Kara will indeed have interaction with other young people during the proposed placement, by participating in the Sherwood House activities program and through community interaction facilitated by the Safe Place care workers.

80. [80]

    I note Ms P’s objection to CICADA continuing to provide treatment, counselling and therapy to Kara. However, Kara has responded very well to the counselling, therapy and intervention offered by CICADA during her stay in the Saunders Unit. Again, it is Kara’s best interests that are relevant.

81. [81]

    I acknowledge Ms P’s disagreement with Kara’s diagnosis of a mild intellectual disability. However, there is no medical evidence before the Court that casts doubt on that diagnosis.

82. [82]

    I note Ms P’s complaint that the proposed weekly plan is too structured and contains activities that Kara will not like. I have reviewed the weekly plan and it seems to me that it provides for a range of activities designed to assist Kara in re-engaging with education, developing some life skills (such as tidying her bedroom and cooking), and also engaging in activities that she enjoys (such as music and beauty therapies). This seems to me to be consistent with Dr Jeng’s recommendation to develop Kara’s daily living skills and to engage Kara in activities that she enjoys to support self-esteem and build up her competency in a variety of areas. In any event, the proposed plan is just that – a plan for the first ten days of the proposed secure placement. It is not cast in stone. During my inspection of the proposed placement premises on 21 September 2020, the Safe Places representatives explained how young persons in care are able to articulate requests and participate in planning of their time and activities.

83. [83]

    The proposed secure placement orders interfere with Kara’s liberty to a lesser extent than the orders pursuant to which she has been confined in the Saunders Unit. That is because the proposed secure placement order incorporates Kara having access to and interaction with the community during the placement. However, the extent of community access will be determined by the Secretary and that access will be facilitated by, and subject to the control and supervision of, the Safe Places case workers. The orders therefore still involve a serious interference with Kara’s liberty.

84. [84]

    On the basis of all of the medical evidence referred to in these reasons, I am satisfied that this interference is necessary for Kara’s protection, and for the promotion of her welfare, at this stage in her life. I am satisfied that the object of the confinement is to protect Kara from the high risk of relapse into substance misuse following her discharge from the Saunders Unit, to support Kara to begin to integrate and function safely in the community by providing her with ongoing psychological intervention, counselling and therapy to address her complex needs, and supporting her in her interactions with the community with a view to increasing her ability to interact independently with the community over time. I am also satisfied that the plaintiffs are taking care to ensure that the achievement of this object does not involving sacrificing Kara’s connection to her mother, her ability to rebuild connections with other family members, her connection to her culture or her wish to re-engage with education. Of course, this will require ongoing attention during the placement as Kara’s needs and circumstances evolve.

85. [85]

    For all of those reasons, I have decided to make orders substantially in the terms proposed by the plaintiffs authorising Kara’s confinement to the secure placement premises, subject to an additional order concerning the facilitation of Kara’s access to the community.

86. [86]

    Kara will reach the age of 18 years in January 2022. At that time, she will cease to be under the parental responsibility of the Minister (for all aspects except religion and culture, in respect of which parental responsibility vests with Kara’s mother). In the meantime, the matter will be the subject of ongoing review and re-assessment by the Court. The orders below provide for the matter to be re-listed on 21 October 2020 as part of that ongoing review process. This is somewhat longer than the three week period proposed by the independent legal representative for Kara, but it is a realistic timeframe in my view for the plaintiffs to prepare the evidence that will be required for that next review. The parties will have liberty to apply in the meantime.

Orders

1. [87]

   For all of the above reasons, I make the following orders:

   1. (1)

      Discharge with immediate effect Order 1 of the short minutes initialed and dated 11 September 2020 and included in the orders made on that date.

   2. (2)

      Order that, until 30 September 2030, there be no publication or disclosure that would identify, or tend to identify, "Kara", except for the purpose of:

   3. (3)

      Order 2 applies throughout the Commonwealth of Australia.

   4. (4)

      Order that, until further order and subject to Order 5, the Court authorises the confinement of the young person known as "Kara" to [XXX] ("the secure placement") and authorises the use of reasonable force if necessary to ensure that she remains at those premises or to return her to those premises.

   5. (5)

      Order that, during the confinement referred to in Order 4 above, the plaintiffs (or Safe Places Community Services Ltd as the designated agency engaged by the plaintiffs to operate the secure placement) facilitate Kara having access to and interacting with the community outside the secure placement to the extent determined from time to time by the Secretary of the Department of Communities and Justice (or his or her nominee) following consultation with Safe Places Community Services Ltd.

   6. (6)

      Note that the purpose of Orders 4 and 5 is to ensure that Kara receives ongoing multidisciplinary support and therapy, engages in meaningful and safe relationships, engages in trauma informed care, education or workplace training, sexual assault and drug and alcohol counselling, as recommended by Dr Bronwyn Milne and/or Dr Penny Spencer of the Sydney Children's Hospitals Network.

   7. (7)

      Order that, until further order, the Court authorises "Kara" to be conveyed to the secure placement, and the use of reasonable force if and to the extent necessary in order to convey her to those premises.

   8. (8)

      Order that the plaintiffs file and serve a report or evidence, on or before 16 October 2020, concerning Kara's progress including:

   9. (9)

      Order that the plaintiffs provide to the first and second defendants the following information within 24 hours of it becoming available:

   10. (10)

       Grant liberty to the parties to apply on 24 hours’ notice.

   11. (11)

       Order that the proceedings be adjourned to 8.30am on 21 October 2020 before Williams J.

   12. (12)

       As the hearing time allocated to the matter on 21 October 2020 is one hour, direct that the plaintiffs: