Director-General, Department of Human Services; Re Thomas2 [2010] NSWSC 1559 (23 December 2010)

Last Updated: 22 March 2011

NEW SOUTH WALES SUPREME COURT

CITATION:
Director-General, Department of Human Services; Re Thomas2 [2010] NSWSC 1559


JURISDICTION:
Equity Division

FILE NUMBER(S):
10/410307

HEARING DATE(S):
23 December 2010


EX TEMPORE DATE:
23 December 2010

PARTIES:
Director-General, Department of Human Services
Minister for Community Services
"Thomas"

JUDGMENT OF:
Brereton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr G Moore (plaintiffs)
Ms K Reynolds (first defendant)

SOLICITORS:
I V Knight, Crown Solicitor (plaintiffs)
Leonie Miller (first defendant)


CATCHWORDS:
FAMILY LAW – Children – Secure accommodation order – authorises only minimum necessary force - Contact – grandmother - where contact desirable but child vulnerable and grandmother’s circumstances chaotic and likely to expose child to risk

LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
Proceedings adjourned for further directions.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


BRERETON J

Thursday 23 December 2010

2010/410307 Director-General, Department of Human Services; in Re Thomas 2

JUDGMENT (ex tempore)

1 HIS HONOUR: I have read the affidavit of Ms Miller of 22 December 2010, and I have particularly read Thomas's own statement of 20 December 2010 as to his wishes. I understand and acknowledge his wish to have more frequent contact with his family, particularly his maternal grandmother and his sister.

2 On the one hand, a guiding principle in the present circumstances is to do no harm, and experimentation and adventurism risks doing harm. The fundamental problem is that Thomas's maternal grandmother lives in circumstances where, due to her own age and infirmity, she is unable to exercise much control over her daughters, one or other of whom live with her from time to time, and both of whom appear to be users of drugs, or to have children who are users of drugs. The evidence describes the chaotic circumstances in which his maternal grandmother lives. Thomas's mother, who sometimes lives with his grandmother, has been in and out of prison, and one of his sister's children is also presently in prison. Thomas is vulnerable enough without exposing him more regularly to that environment.

3 On the other hand, it is clear enough that lack of contact with his family is a cause of unhappiness and distress to Thomas. I note that it is thought that Thomas's problems have been at least contributed to by his sense of guilt over his grandfather's death and lack of support or contact prior to then; and it seems to me that that is part of the impetus for his desire for more contact with his grandmother while she is alive, and it may well be that a denial of more contact in that respect will exacerbate his reaction to her eventual demise. I think it is desirable that, if at all possible, Thomas see his grandmother more frequently, but not in the chaotic environment of her household. Whether that involves her visiting him at Sylvanvale, or joint outings to some third location, are options that I would ask the Department to explore. In short, I think it is desirable that, if it can happen in a safe environment - safe from the psychological as well as the physical perspective - Thomas should see more of his grandmother, but not at the risk of exposing an already vulnerable young person to the risks apparent in his grandmother's living arrangements.

4 So far as Thomas' sister is concerned, I note that contact is proposed to happen on Christmas day. If it is possible for there to be some additional contact between them over the vacation period that would seem to be desirable, although the tyranny of distance, if she resides in Wagga or Orange, would obviously impose some financial and other constraints in that respect.

5 Thomas does not mention in his letter his brother, but it is evident from other evidence that contact with the brother at the Christmas party was successful. Again, if that can be sustained, that would be highly desirable.

6 Thomas has made observations to the effect that on one occasion, when restrained, his knee has been hurt. I do not think any material conclusion can be drawn from that. The evidence discloses that he was held to the ground by two guards on 12 December 2010 - after he had entered his bedroom, tried to damage property, agreed to take his PRN medication, taken a shower and then inflicted cuts to his leg. It goes without saying that the orders authorise only such force as is reasonably necessary in the circumstances. I would not want my observations to be thought to suggest that more than reasonable force was used in that situation. The evidence certainly does not permit any such conclusion to be reached. I will simply mention that I think it implicit that the minimum necessary force should be used, as I am sure all involved with this case, in any event, understand.

7 With those observations, I adjourn the proceedings to Wednesday, 16 February 2011 at 9.30 before me for further directions.

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LAST UPDATED:
16 March 2011