Re Emma

[2023] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation:

Re Emma [2023] NSWSC 1088

Hearing dates:

18 August 2023

Date of orders:

18 August 2023

Decision date:

08 September 2023

Jurisdiction:

Equity - Duty List

Before:

Robb J

Decision:

See [84]

Catchwords:

CHILD WELFARE — jurisdiction — Supreme Court of New South Wales — parens patriae – whether parens patriae jurisdiction is sufficiently extensive to enable this Court to make orders directed at NSW Police Force for the retrieval of a young person, or whether proceedings are required to be commenced in a local court pursuant to the Family Law Act 1975 (Cth) and transferred to this Court — held that the parens patriae jurisdiction is sufficiently broad to enable this Court to make orders for the retrieval of a young person the subject of parens patriae orders without the initiation and transfer of local court proceedings

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 245B, 245E

Court Suppression and Non-publication Orders Act 2010 (NSW)

Family Law Act 1975 (Cth), ss 46(3A)(c), 67Q, 67T, 67U

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4(1)

Police Act 1990 (NSW), ss 6(2)(a), 6(3)(b)

Cases Cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624

Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122

Re Kara [2020] NSWSC 1083

Re Neil (No 5) (2022) 110 NSWLR 197; [2022] NSWSC 1704

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15

Vaughan v Vaughan (Supreme Court (NSW), Powell J, 27 February 1979, unrep)

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)

Representation:

Counsel:
A Tembe (Plaintiffs)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
D Neligan (Solicitor, Independent Legal Representative)

File Number(s):

2023/263648

Publication restriction:

The orders made prohibit the publication or disclosure of information that would identify, or tend to identify, the young person in these proceedings known as “Emma” until 19 July 2032, save for certain excluded purposes.

JUDGMENT

1. On 18 August 2023, I gave leave to the Secretary, Department of Communities and Justice, and the Minister for Families and Communities, as plaintiffs, to commence these proceedings in the Duty List of the Equity Division of this Court.

2. The application concerned a 16-year-old girl who has been given the pseudonym “Emma” for the purposes of these proceedings.

3. The application was held in closed Court and orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or disclosure of information that would identify or tend to identify Emma until 19 July 2032, save for certain excluded purposes.

4. On the application of the plaintiffs, I made what are commonly called secure accommodation orders in respect of Emma, as follows:

10.   That, pending further order, leave be granted to the Secretary, Department of Communities and Justice (“the Secretary”) or the Secretary’s nominee(s) to detain the young person known as “Emma”, at either:

(a)   [Secure] House; or

(b)   [Secure] Cottage, [location redacted]; or

(c)   [FH] House; or

(d)   [FR] Cottage

(Collectively referred to as “the secure premises”) and, to use reasonable force if necessary to so detain her.

11.   That, pending further order, leave be granted to the Secretary or the Secretary’s nominee(s), using whatever assistance the Secretary or the Secretary’s nominee(s) may deem appropriate, to take the child known as “Emma” to the secure premises and transport the young person known as “Emma” between premises.

12.   That, pending further order, the staff engaged or employed by the Secretary or the Secretary’s nominee(s) at the secure premises, using whatever assistance may be necessary, and using reasonable force if necessary, be authorised to restrain the young person known as “Emma”, in order to prevent her from injuring herself and/or others.

5. The properties referred to in order 10 are the premises at which the Secretary administers what is generally called the “[Secure] House program”, where young persons the subject of secure accommodation orders can be safely and securely accommodated for the purpose of providing to them bespoke care and rehabilitation programs aimed at enabling the young persons to gain the capacity to live satisfactory lives in the community when they cease to be under the parental responsibility of the Minister.

6. The Court makes orders of this type under its parens patriae jurisdiction, which is an ancient jurisdiction vested in the Court that empowers it to make orders that are necessary for the safety, protection and care of persons who are unable to be protected by any alternative means. I will say more about the parens patriae jurisdiction below.

7. The orders were made in the absence of Emma. I made the orders immediately, because the evidence that was placed before the Court made it obvious that Emma was in extreme and immediate need of being placed in secure accommodation within the Secure House program.

8. On 5 February 2012, the Children's Court of New South Wales made final orders allocating parental responsibility for Emma to the Minister until she turns 18 years old. Thus, the Court was asked to make all of the orders that were made by the person who exercises parental responsibility for Emma.

9. On this occasion, a solicitor independent of the plaintiffs appeared on the application and, with the consent of the plaintiffs, I made an order appointing the solicitor as the independent legal representative (ILR) for Emma. The ILR supported the Court making the orders sought by the plaintiffs. Applications of this type are usually made by the plaintiffs with such a degree of urgency that there has been no time for an arrangement to be made for a potential ILR to appear. In such cases, if the orders are made, they include an order that the plaintiffs arrange for the appointment of an ILR for the young person. The secure accommodation orders are then only made for a short time to enable the ILR to be appointed and to appear on the next occasion in order to make submissions to the Court in the interests of the young person as to whether the secure accommodation orders should be continued, and if so, on what terms.

10. If the secure accommodation orders are continued, they are customarily returned to the Court every three months or so for reconsideration. If the plaintiffs wish to ask the Court to make orders continuing the secure accommodation orders, the plaintiffs provide to the Court comprehensive evidence of the participation of the young person in the Secure House program since the time the last order was made.

11. The evidence is always provided to the ILR in advance so that the ILR will be able to act in the interests of the young person at the hearing. Commonly, in my experience, the ILR for the young person speaks to him or her, so that, having proper regard to limitations that sometimes exist on the young person's capacity to act maturely in their own interests, the ILR can inform the Court of the young person's attitude to the continuation of the secure accommodation orders. The orders are usually continued until the therapeutic program in which the young person participates while in secure accommodation has enabled the young person to recover sufficiently to enable them to reside in an alternative placement with less restrictive accommodation arrangements, or they graduate out of the program upon turning 18, when the parental responsibility of the Minister ceases.

12. It is customary for judges who make the initial secure accommodation orders to retain, where possible, personal judicial responsibility for the supervision of the young person's involvement in the program and the continuation of the secure accommodation orders until the young person transitions out of the program.

13. As the purpose of these reasons is to deal with a particular issue that arose on the present application, and not to give reasons for why the secure accommodation orders were made, it will be sufficient to provide the following brief explanation of the Court’s parens patriae jurisdiction. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s Case), Mason CJ, Dawson, Toohey and Gaudron JJ relevantly said at 258 (footnotes omitted):

As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve. His Lordship pointed out that “[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.” In Wellesley v Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:

“[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.”

When that case was taken on appeal to the House of Lords, Lord Redesdale noted:

…

Lord Redesdale went on to say that the jurisdiction extended “as far as is necessary for protection and education”.

To the same effect were the comments of Lord Manners who stated that “[i]t is … impossible to say what are the limits of that jurisdiction”. The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle…

14. Later in AMS v AIF (1999) 199 CLR 160; [1999] HCA 26, Gaudron J added at 189 (footnotes omitted):

…It has been said that the parens patriae jurisdiction is “an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]” and that “[i]ts limits … have not, and cannot, be defined”. However, the jurisdiction is not in principle supervisory. Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child's welfare.

If there is a risk to the welfare of a child, the parens patriae jurisdiction will support a great variety of orders and orders of great width. It has been said that it will support orders related to “categories of cases … such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations” and that “[t]hat list is not exhaustive … [for] the powers of [a] court in this particular jurisdiction have always been described as being of the widest nature”.

15. As Sackar J said in this Court in in Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 at [21]-[23].

[21] It is appropriate that I observe that the parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Marion’s Case (1992) 175 CLR 218, 258–9 (Mason CJ, Dawson, Toohey and Gaudron JJ) 278–80 (Brennan J). The jurisdiction requires and obliges the Court to act in the manner of a wise, affectionate and careful parent for the welfare of the person: R v Gyngall (1893) 2 QB 232 at 241 (Lord Esher MR); Marion’s Case at 280 (Brennan J).

[22] The jurisdiction’s focus is essentially protective in nature. In exercising the jurisdiction the Court’s concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq.

[23] The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad. Whilst broad, it is generally to be exercised only in exceptional cases and with considerable caution. In the case of an adult, this caution is especially important because care should always be taken to ensure that there is no interference unlawfully in the free will of a capable individual.

16. The aspect of these decisions that is most relevant for the purposes of these reasons is the description of the parens patriae jurisdiction as being unlimited, though required to be exercised in a principled way and only in exceptional cases and with considerable caution.

17. In addition to the secure accommodation orders that are set out above, in this case I made the following order on the application of the plaintiffs:

13.   That, pursuant to the parens patriae jurisdiction of the Court, until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover the young person [redacted] (known in these proceedings as "Emma"), with such assistance as they require, and using reasonable force if necessary, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purposes of finding “Emma”, and delivering her to the Secretary, Department of Communities and Justice, or the Secretary's delegate, at the secure premises, on any day that “Emma” is located and recovered.

18. That was the only order sought in the plaintiffs’ notice of motion directed at enlisting the assistance of officers of the NSW Police Force in finding and transporting Emma to Secure House. Counsel for the plaintiffs disclosed that, in another recent application for secure accommodation orders made by the plaintiffs in relation to a young person given the pseudonym “Demi”, the plaintiffs had included an alternative form of order in their notice of motion to the equivalent of order 13 made by me, which was in the following terms:

14. That, pursuant to section 46(3A)(c) of the Family Law Act 1975 (Cth), the Local Court of New South Wales proceedings concerning “Demi”, which were instituted in the Local Court sitting at Waverley by the Secretary on 7 June 2023, be removed from the Local Court to this Court and they be consolidated with these proceedings.

15. That, pursuant to section 67T and section 67U of the Family Law Act1975, until 7 June 2024 or until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover the young person [redacted] (known in these proceedings as “Demi”), with such assistance as they may require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purposes of finding “Demi”, and delivering her pursuant to section 67Q(a)(v) of the Family Law Act 1975 (Cth) to the Secretary, Department of Communities and Justice, or the Secretary’s delegate, at the secure premises, on any day that “Demi” is located and recovered.

19. The purpose of these reasons is to explain why I made order 13, and, in particular, to justify my view that the parens patriae jurisdiction is sufficiently extensive to support the making of order 13 instead of the alternative orders set out immediately above, the latter of which have been supported by authority that will be considered below.

20. I should record that I decided that the Court had jurisdiction to make order 13, and that I should do so, with the benefit of written submissions made by counsel briefed to appear for the plaintiffs. The following reasons endorse the validity of those submissions.

21. I was informed by those submissions that this Court has made an equivalent order to order 13 on the application by the plaintiffs for secure accommodation orders in the matter involving “Demi”. The order was made by Hammerschlag CJ in Eq in the Duty List. I was informed that, at the time he made the order, his Honour did not have the benefit of the written submissions that were provided to me on this application. I was also informed that, at a later hearing in the matter involving Demi at which Lindsay J made orders extending the secure accommodation orders, his Honour made an observation in regard to the Chief Judge’s reliance solely on the parens patriae jurisdiction: “…but I note with some degree of satisfaction that, given the choice, he made his orders by reference to the inherent protective jurisdiction, rather than any legislation, and I would encourage the Crown Solicitor’s Office to accept that the jurisdiction of the Court does extend to making those orders.” Given the eminence of the Chief Judge and the depth of Lindsay J’s understanding of the protective jurisdiction of this Court, I am fortified in the reasoning I will now express, notwithstanding that neither of these judges was given the opportunity to express a considered view on the issue.

22. It will be appropriate to begin by setting out the aspects of the evidence that were material to my decision to make the order enlisting the aid of the officers of the NSW Police Force (which I will call for convenience a “recovery order”, although that term has a technical meaning when equivalent orders are made under the Family Law Act 1975 (Cth)). That evidence may prompt the thought that the plaintiffs could well have made the application earlier than they did. The explanation is that the Secure House program is only able to accommodate 16 young persons, and there was no vacancy until August of this year.

23. I will omit certain detail from my description of the evidence, such as times and places, to reduce the possibility that Emma will be able to be identified by persons who are familiar with her history.

24. Emma was assumed into care at a very young age because of numerous risk of harm reports outlining her exposure to illicit drugs while in utero, family violence, and her mother's self-harming and suicidal ideation. For many years, Emma lived in various out-of-home care placements, including a long-term placement that ended due to the carers' inability to manage Emma's behaviour. At the time the Court made the secure accommodation orders, Emma was living in an Intensive Therapeutic Care (ITC) placement with a funded agency. ITC is a service system that helps children who are recovering from the most severe forms of trauma, neglect, abuse or adversity. ITC is for children over 12 years of age with complex needs, who are either unable to be supported in foster care or require specialised and intensive supports to maintain stability in the care arrangements.

25. During this year up to the date of the plaintiffs’ application, Emma's funded agency recorded 69 incidents, including (a) absconding from her placement; (b) use of illicit substances (including cannabis, gamma hydroxybutyrate (GHB), crack cocaine, heroin, methamphetamine, dimethyltryptamine (DMT) and use of alcohol; (c) shoplifting; (d) concerns that Emma may have been subject to sexual exploitation and abusive relationships with a number of males; and (e) behavioural concerns, including aggression and anxiety.

26. During this period, Emma absconded from her placement on at least 20 occasions. Emma often presented at her placement as heavily drug-affected and she has disclosed to staff that she is a regular user of ice and heroin.

27. The evidence detailed 10 incidents of risk of significant harm reports being made in respect of Emma during this period. These reports included multiple examples of Emma being seen in cars driven by significantly older men, and reports of Emma staying in motels and other accommodation for the purpose of having sex with older men in return for being supplied with drugs. Emma has been seen on a number of occasions with track marks on her arms and bruising and blue feet and hands. On one recent occasion, it was reported that Emma was hitchhiking at night in the rain and that her 40-year-old boyfriend was grooming her, and supplying her ice, and she appeared drug-affected and had lost weight and had a look of poor general health.

19. Emma has not had a mental health assessment as she refuses to engage with relevant services. She currently has been prescribed psychotropic medication to assist with self-regulation, medication for insomnia, and to reduce nausea and vomiting. Emma continually refuses to take her medications.

20. Emma's funded agency has been advised by her paediatrician that Emma is "at extremely high risk of ongoing harm as well as a risk of death by either assault or misadventure due to her high risk behaviours."

21. The Court received evidence that Emma had most recently returned to her placement on 16 August 2023. Staff did not believe that she would stay long. It was reported that Emma returned to her placement every five days, as she believed that she would lose her placement if she did not return regularly.

22. The Court was informed that Emma had not been told about the application, as her care team was concerned that she would go into hiding.

23. The plaintiffs' proposal was that, if secure accommodation orders were made, Emma would be moved to Secure House on 21 August 2023, or as soon as police were able to locate and recover her. It was anticipated that police assistance would be required to safely transport Emma to Secure House. A plan had been discussed with officers of the NSW Police Force for Emma's safe transport and transition to Secure House, which involved a plane being chartered to transport Emma, her caseworker and two police officers from an airport close to her placement to an airport in Sydney where they would be met by local police.

24. It was my opinion at the time that I made the secure accommodation orders and the recovery order to the officers of the NSW Police Force to assist, if necessary, in finding Emma, and to escort her to Secure House, that the facts that I have outlined above spoke for themselves, and required an immediate intervention by this Court. The only issue was whether the Court's parens patriae jurisdiction was sufficiently extensive so as to enable the Court to make the recovery order directly, or whether it was necessary for the Court to take the alternative course of waiting for the plaintiffs to commence proceedings in the Local Court and then removing those proceedings to this Court under s 46(3A)(c) of the Family Law Act.

25. In making the direct recovery order, I accepted the submission made on behalf of the plaintiffs that the alternative process for seeking recovery orders involving the institution of proceedings in the Local Court, and then the removal of those proceedings to this Court for determination, was unsuitable in urgent circumstances such as the current proceedings. The making by the plaintiffs of an application to the Local Court would have required the preparation of supporting documentation and the taking of additional administrative steps that would delay the hearing of the application in this Court. The Local Court process would be reliant on the Local Court Registry having capacity to receive the application, understand the action required, and to record the filing of the relevant application in a timely manner without any additional administrative delays. On the other hand, the judges who sit in the Duty List in Equity in this Court have experience with the making of secure accommodation and related orders, and there is a Duty Judge available to hear urgent applications for the making of those orders on an urgent basis, around-the-clock, if necessary, every day of the year.

26. When I made the recovery order relying solely on the parens patriae jurisdiction, I was aware of earlier authorities that have cast doubt on the existence of this power in the Court, even though the parens patriae jurisdiction is said to be unlimited. Further, the existence of these authorities was fully disclosed by the plaintiffs in their submissions.

27. I will now explain by reference to the earlier authorities why I consider that the parens patriae jurisdiction does extend to empowering the Court to make the recovery order that I made.

28. It is appropriate to start with a consideration of the judgment of Powell J (as his Honour then was) given in Vaughan v Vaughan (Supreme Court (NSW), Powell J, 27 February 1979, unrep). That was a brief judgment of three pages given without reference to authority. The application was made by a mother against the father in respect of an ex-nuptial child. An order had been made in favour of the father that he have liberal access to the child, but on an access date the father had taken the child into his care and had not returned the child to the mother, and had not communicated with the mother, who did not know of the whereabouts of the father or child.

29. On 15 December 1978, Needham J had granted the mother leave to issue a writ of habeas corpus directing the father to produce the child to the Court forthwith, but the mother had not been able to ascertain the whereabouts of the father in order to serve the writ on him.

30. It is perhaps significant to his Honour's reasoning that the mother had sought unsuccessfully to enlist the assistance of the police to find the father and the child. His Honour said: "In particular, it would seem that the normal practice of the police authorities is that unless for some reason a person, such as the Defendant, comes under police notice for some form of offence, they will take no particular steps to assist in service of the Writ or Order".

31. Powell J held:

While it seems that s 64(9) of the Family Law Act 1975 (Cth) confers on the Family Court of Australia a power, by issue of a warrant, directly to invoke the assistance of the police authorities, it seems to me that I have no jurisdiction to direct the issue of any similar warrant nor, since the police officers are not – indeed I cannot see how they could be made – parties to the present proceedings, that I have any jurisdiction to direct any order to the police authorities.

41. His Honour did not elaborate upon his reason for reaching this conclusion.

42. It is notable that, although Powell J held that he had no jurisdiction to direct the issue of any warrant or to make any order binding the police authorities, he made the following statement in his judgment, so that the mother's solicitors could approach the Commissioner of Police with a formal record of his Honour's views, and thus seek whatever assistance the Commissioner may be able to make available to her. That view was:

This being so, it seems to me that I must dismiss the present application. However, it seems to be a case in which, although I have no jurisdiction to direct the issue of any warrant or to make any Order binding on the police authorities, it would be of considerable assistance to the Court and to the administration of justice in this State if the Commissioner of Police were to lend to the Plaintiff the aid of his officers to ascertain the whereabouts of the Defendant and to give the Plaintiff all such assistance as may be possible to effect service upon the Defendant of the Order of Needham J and of the Writ of Habeas Corpus issued pursuant thereto.

43. This decision was significant to the judgment of Brereton J (as his Honour then was) in Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122. That was a case that concerned whether the Court should punish the parents of a newborn child for contempt for failing to present the child at a hospital in compliance with an order of the Court that they do so, in order to enable the hospital to administer a Hepatitis B vaccine to the child. Brereton J recorded at [5] that, on 22 August 2008, the Director-General approached him as Duty Judge with a notice of motion “seeking orders that the parents present Jules to the hospital forthwith; that all officers of the New South Wales Police Force be authorised to stop and search vehicles and enter and search premises for the purpose of finding Jules, to take custody of him and present him to the Director-General; and authorising the hospital to administer the Hepatitis B vaccine”.

44. In relation to the issue that is relevant to these reasons, his Honour said:

[14] Wide as the parens patriae jurisdiction is — indeed, it has been said that no limit has ever been set to it and that it extends as far as is necessary for the protection and education of children [Wellesley v Wellesley (1828) 2 Bli NS 124 at 136–7; Re X(a Minor) [1975] 2 WLR 335, 342; K v Minister for Youth and Community Services, 326] — I was concerned that the Court did not, at least in its parens patriae jurisdiction, have power to make the order sought conferring authority on the officers of the New South Wales Police Force to search and take custody of the child — a concern which was subsequently confirmed by reference to the judgment of Powell J in Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported) , in which a similar order had been sought in aid of a writ of habeas corpus, but His Honour explained that the Court could not simply authorise police to do things that they were not otherwise authorised to do in the absence of such statutory provisions as empowered the Family Court, under the then provisions of the Family Law Act, to issue a warrant to police, and moreso where the persons sought to be so authorised were not parties to the proceedings. The observations of Powell J in Vaughan v Vaughan confirm my view that the parens patriae jurisdiction does not empower the Court to confer authority on others — such as medical practitioners — in respect of a child, although it can assume, and delegate, parental responsibility or aspects of it.

45. Brereton J considered the issues involved in the Court exercising its parens patriae jurisdiction for the purpose of ensuring that the child's health was protected by the administration of the Hepatitis B vaccine, and then added:

[21] A second reason for making a child a ward of the Court and giving parental responsibility to the Minister was that while, as I have foreshadowed, this Court could not in its inherent jurisdiction make an order authorising the New South Wales Police to search vehicles and premises, and take the child and deliver him to the Director-General, as Powell J mentioned in Vaughan v Vaughan, Family Law Act, s 67Q, gives statutory authority for recovery orders, which include orders to that effect. The difference between the position which pertained before me and that which confronted Powell J in 1979 is the intervention of the Jurisdiction of Courts (Cross-Vesting) Act, which now gives this Court the power to make such orders under the Family Law Act. By the conferral on the Director-General of parental responsibility, the Director-General became a person in whose favour a recovery order under Family Law Act, s 67Q, could be made. Accordingly, having ordered that until further order the child be a ward of the Court and that the Director-General have parental responsibility, I also made a recovery order pursuant to Family Law Act, s 67Q, that the child be delivered to the Director-General and that all officers of the Australian Federal Police and New South Wales Police be authorised to stop and search vehicles, and enter and search premises, for the purpose of finding and recovering the child and delivering him to an officer of the Department. I reserved liberty to apply, and I also directed that there be endorsed on the order notice to the parents that should they wish to apply urgently to vary or discharge the order, they were to telephone the court security desk and ask for the Equity Duty Judge.

46. It will be noted that order 13 that I made on 18 August 2023 conformed with the prayer for that relief in the plaintiffs’ summons and used the expression in respect of all officers of the NSW Police Force that they be “authorised and directed to locate and recover” Emma. That expression is conventionally used in the orders that were made in this Court under the cross-vested jurisdiction under the Family Law Act, and is apparently based on the use of the expression “authorising or directing a person or persons” to recover a child in the definition of “recovery order” in s 67Q of the Family Law Act.

47. Williams J considered this issue in Re Kara [2020] NSWSC 1083. The case involved an application by the present plaintiffs that her Honour described at [2] in the following terms:

[2] On 12 August 2020, the Secretary, Department of Communities and Justice (the Secretary) and the Minister (together, the plaintiffs) made an urgent application to the Court for orders in the exercise of the Court’s parens patriae jurisdiction and the statutory jurisdiction under Part VII, Division 8 of the Family Law Act 1975 (Cth) (cross-vested in this Court by s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)) authorising the removal of Kara to a medical facility and her confinement at that facility for the purpose of undergoing a medically supervised detoxification and withdrawal program. This was proposed as a first step in what is likely to be a long program of medical and psychiatric treatment, care and support.

48. Williams J made the orders sought by the plaintiffs, including order 12A, as stated at [4], in the following terms:

12A Order pursuant to s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and s 67Q(c) and (d) of the Family Law Act 1975 (Cth) that, conditional upon “Kara” failing to return to her current placement before midnight on 12 August 2020 (and remaining there until 9.00am on 13 August 2020 (subject to order 12 above) as required by the Minister having parental responsibility for “Kara” pursuant to orders made by the Children’s Court of New South Wales on 26 March 2020, and as previously communicated by the Department of Communities and Justice on behalf of the Minister to “Kara”), all officers of the NSW Police Force are authorised to recover “Kara” and deliver to the Minister or the Minister’s delegate to one of the locations referred to in order 12 above as nominated by the Minister or the delegate.

49. The reasons subsequently given by Williams J for the making of the orders included:

[65] Children have a fundamental human right not to be deprived of their liberty unlawfully or arbitrarily, as provided for in Article 37 of the United Nations, Convention on the Rights of the Child. However, in exceptional cases where deprivation of liberty is a necessary consequence of the exercise of the parens patriae jurisdiction for the protection of the child and the promotion of his or her welfare, the making of orders by the Court as parens patriae that interfere with the personal integrity and liberty of a child will not contravene the child’s human rights.

[66] The parens patriae jurisdiction does not empower the Court to make orders conferring on third persons, including police officers and medical practitioners, authority that they do not otherwise have. Rather, the Court exercises the jurisdiction to authorise treatment or other action, and that authorisation given by the Court as parens patriae renders the treatment or action by the third party lawful irrespective of whether the child or the child’s parents consent.

[67] In addition to the parens patriae jurisdiction, the Court also has the powers relating to children provided by Pt VII, Div 8 of the Family Law Act, by reason of s 4 of the Jurisdiction of Courts (Cross-Vesting) Act. Relevantly for the purpose of the present case, those statutory powers include the power to authorise or a direct a person or persons to recover a child (using force, if necessary) and deliver the child to a parent of the child or a person with parental responsibility for the child, or to some other person on behalf of a parent or person with parental responsibility: see ss 67Q to 67Y of the Family Law Act. In deciding whether to make such an order, the Court must regard the best interests of the child as the paramount consideration: see s 67V of the Family Law Act.

50. The legal situation to this point was that the view had been taken in a number of cases that the Court did not have power under its parens patriae jurisdiction to make an order directed at officers of the NSW Police Force that they cooperate to find and deliver the young person the subject of care orders made in the exercise of the jurisdiction to the parties responsible for executing the Court's orders. However, the then Family Court of Australia had power to make such orders, and the effect of the then current cross-vesting legislation was that it empowered this Court to cross-vest the Family Court's jurisdiction to this Court for the purpose of making the same orders as were within the power of the Family Court.

51. Significantly, the effect was that the supposed lacuna in the Court's parens patriae jurisdiction would be cured by the simple device of the Court making orders that cross-vested the Family Court's jurisdiction to this Court. As a practical matter, that only required the plaintiffs to add one prayer to their summons and the Court to add one order to its orders. This simple procedure avoided any additional delay being caused in cases where the assistance of the NSW Police Force was necessary to make the particular care orders of the Court in the exercise of its parens patriae jurisdiction effective.

52. This straightforward stratagem for curing what was apparently a serious practical lacuna in the Court's parens patriae jurisdiction was terminated by legislative changes that took effect on 1 September 2021, and had the effect that this Court could not continue to exercise cross-vested jurisdiction under the Family Law Act to make recovery orders involving officers of the NSW Police Force.

53. Henry J was required to deal with this issue in Re Neil (No 5) (2022) 110 NSWLR 197; [2022] NSWSC 1704, a decision delivered on 13 December 2022. The circumstances of the case were different to the present case. There, Neil was already the subject of secure accommodation orders made in the exercise of the Court's parens patriae jurisdiction, and was accommodated in the Secure House program. He had exhibited a habit of absconding from the program. The plaintiffs, accordingly, sought orders that would have had the effect of standing orders authorising and directing all officers of the NSW Police Force to locate and recover Neil in order to return him to the Secure House program at any time in the future when he absconded.

54. As appears from her Honour's judgment, the original secure accommodation orders were made on 28 April 2021 and extended from time to time. At [3], Henry J explained that her reasons dealt with an application made by notice of motion filed by the plaintiffs seeking an order under s 46(3A) of the Family Law Act for this Court to remove Local Court proceedings instituted by the plaintiffs in which they sought recovery orders in relation to Neil under ss 67T and 67U of the Family Law Act to this Court, and for this Court to then hear and determine the recovery order application.

55. As her Honour explained, this application came before the Court in the following way. Henry J had earlier made recovery orders in respect of Neil on the basis established by Re Jules, but when the plaintiffs applied for an extension of those orders on 23 September 2022, her Honour raised the possibility that the 1 September 2021 legislative changes may have deprived this Court of jurisdiction to make recovery orders based upon the cross-vested powers of what had formally been called the Family Court of Australia.

56. As the parties were not in a position to properly consider and respond to what Henry J called the jurisdiction issue, her Honour made interlocutory orders, as explained at [11]-[12], as follows:

[11] With no criticism intended, the Plaintiffs’ counsel and Mr Levy were not in a position to properly consider and respond to the jurisdiction issue at the hearing. As I was not satisfied that this Court had cross-vested jurisdiction under the Cth Cross-vesting Act, I declined to make a recovery order under the FL Act. Given there was some urgency regarding Neil’s position, the Court acceded to the Plaintiffs’ revised application (supported by Mr Levy) and made interim orders in the exercise of the Court’s parens patriae jurisdiction in the following terms:

(1)   Until 5:00pm on 4 October 2022, members of the NSW Police Force holding a position that is designated under the Police Act 1990 (NSW) are authorised, subject to order 2, to:

(a)   assist in locating [Neil] and/or his return to secured premises referred to in order 2 if requested to by the Secretary or the Secretary’s nominees to do so; and

(b)   for the purposes of returning [Neil], or assisting others to return [Neil], to the secured premises, to use reasonable force if necessary for the restraint of [Neil] for the purposes of:

(i)   transporting him to the secured premises,

(ii)   preventing him injuring himself and or others, and/or

(iii)   permitting others to administer [Neil’s] medication as approved by the Secretary or the Secretary’s nominees or otherwise authorised under statute.

(2)   The authority conferred under order 1 may only be used if the member of the Police is requested by the Secretary or the Secretary’s nominees to assist in returning [Neil] to the secured premises.

[12] I considered that the Court had power to make these orders under the parens patriae jurisdiction as, in essence, they were simply expanding the persons who were authorised under the extant secure accommodation orders to exercise powers of restraint for Neil to members of the NSW Police Force when requested by the Secretary (or nominees) to assist in the return of Neil to the secured premises: Re Neil (Supreme Court (NSW), Henry J, 23 September 2022, unrep).

57. The observations made by Henry J are, in my opinion, important to the determination of the present issue. As I understand her Honour's judgment, she made the recovery order on a short-term basis to 4 October 2022, solely on the basis of the Court's parens patriae jurisdiction. Her Honour did so on the basis that the orders were simply an expansion of the persons who were authorised under the extant secure accommodation orders to exercise the powers of restraint for Neil to members of the NSW Police Force, when requested by the Secretary, or the Secretary’s nominee, to assist in the return of Neil to the secured premises.

58. I respectfully agree with her Honour's reasons, which I consider extend in their application to the issue the subject of these reasons. In the present case, the plaintiffs envisage that the NSW Police Force will assist in finding Emma, if necessary, and transport her to Secure House, on a once and for all basis. The recovery order will then be exhausted. Henry J proceeded to determine the plaintiffs’ application for a standing recovery order on a longer term basis by removing proceedings commenced in a local court into this Court, because she was asked to do so by the plaintiffs.

59. As Henry J explained at [13]:

[13] On 8 November 2022, the Plaintiffs filed a notice of motion, the subject of these reasons (Motion) seeking the following orders:

1. Pursuant to section s 46(3A)(c) of the Family Law Act 1975 (Cth), order that the Local Court proceedings concerning Neil, which were instituted by the Secretary on 8 November 2022, be removed from the Local Court to this Court.

2. Pursuant to section 67T and section 67U of the Family Law Act 1975 (Cth), until 1 November 2023 or until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover the young person [Neil], with such assistance as they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purposes of finding Neil, and delivering him pursuant to section 67Q(a)(v) of the Family Law Act 1975 (Cth) to the Secretary, Department of Communities and Justice, or the Secretary’s delegate, on any day that Neil is located and recovered.

60. These orders are equivalent to the alternative recovery orders sought by the plaintiffs in the case involving Demi.

61. Henry J then explained, at [14]-[17], that the plaintiffs’ notice of motion was listed before her Honour on 16 November 2022. Significantly, the plaintiffs did not move on their motion on that date, because they had been unable to file with the Local Court of NSW their originating application seeking a recovery order in relation to Neil pursuant to ss 67U and 67T of the Family Law Act. On 23 November 2022, on the application of the plaintiffs, Henry J granted orders in the exercise of the Court’s parens patriae jurisdiction in the same terms as the orders that were set out at [11] of her Honour's judgment, save that they were continued until 8 December 2022. Later on 23 November 2022, the plaintiffs’ originating process seeking recovery orders was accepted for filing in the Downing Centre Local Court. (I interpolate, by way of noting the complications that can arise if the plaintiffs are first required to commence proceedings for recovery orders in a local court, before those proceedings can be removed to this Court, that her Honour explained at [137]-[140] that, after she had made the recovery orders, it was discovered that the Downing Centre Local Court was one of four local courts in this State that had been proclaimed not to have the relevant jurisdiction under the Family Law Act. It was therefore necessary for the plaintiffs to commence new proceedings in the Waverley Local Court, for her Honour to vacate her orders, and then to make new recovery orders in the same terms).

62. Henry J recorded the issues that were the subject of her reasons for judgment at [18], as follows:

[18] On 30 November 2022, orders were made by consent granting leave to the Attorney General of NSW to appear as amicus curiae in respect of the Plaintiffs’ Motion and for the service by the amicus of written submissions on the following issues:

(1)   whether the Supreme Court of NSW is, by operation of the Cth Cross-vesting Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Cross-vesting Act) vested with jurisdiction to make a recovery order under the FL Act;

(2)   in the event that an application is filed by the Plaintiffs in the Local Court of NSW:

(a) whether the Supreme Court of NSW can remove proceedings commenced in the Local Court of NSW to the Supreme Court of NSW pursuant to s 46(3A) of the FL Act, where such proceedings seek a recovery order under the FL Act, and

(b) whether, following the removal of Local Court of NSW proceedings into the Supreme Court of NSW pursuant to s 46(3A) of the FL Act, the Supreme Court of NSW has jurisdiction to make a recovery order under the FL Act;

(3)   whether, in the event the Supreme Court of NSW does not have jurisdiction to make a recovery order under the FL Act, the Supreme Court of NSW can make an order to the same effect as a recovery order in the exercise of its parens patriae jurisdiction; and

(4)   whether the orders made by the Court on 23 November 2022 are appropriate and ought to be continued in their current or amended form.

63. It will be seen from this statement of the issues that it would only be necessary for the Court to decide issue (3), being whether this Court can make an order to the same effect as a recovery order in the exercise of its parens patriae jurisdiction, if the Court had decided in respect of issues (1) and (2) that the Court could not make recovery orders in respect of Neil by means of the removal of the proceedings commenced in the Local Court to this Court and the determination of those proceedings here.

64. The position adopted by the plaintiffs in the application to Henry J was recorded by her Honour at [23] as follows:

[23] The Plaintiffs also submitted that the orders made by the Court on 23 September and 23 November 2022 were authorised under the parens patriae jurisdiction. However, their position is that a recovery order under the FL Act is preferable as it would appear from existing authorities (referring to Re Kara [2020] NSWSC 1083 at [66] (Re Kara); Re Sally [2009] NSWSC 1141 at [54] and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 at [14] (Re Jules)) that there are aspects of a recovery order under the FL Act that cannot be made under the parens patriae jurisdiction, such as directing or compelling police officers to act, and authorising or directing them to search or enter vehicles, premises and places without a warrant.

65. Her honour also recorded at [28] the position of the Attorney General for NSW, who had appeared as amicus curiae, as follows:

[28] The Attorney General also agreed with the Plaintiffs that the orders made on 23 November 2022 were authorised under the parens patriae jurisdiction. While no objection was raised to the continuation of such orders if a recovery order under the FL Act was not made, the Attorney General submitted that Order 1(a) (which authorised members of the NSW Police Force to assist in locating Neil and/or returning him to [Secure] House if requested to do so by the Secretary) may not be necessary as they are otherwise authorised to provide assistance requested by a parent in respect of a missing child in the ordinary course of providing police services: Police Act 1990 (NSW), ss 6(2)(a), 6(3)(b).

66. Thus, the Attorney General agreed that the interlocutory orders made on 23 November 2022 were authorised under the parens patriae jurisdiction, and did not object to the orders for recovery continuing on that basis, if recovery orders were not made under the Family Law Act. The Attorney General submitted that the continuation of the orders "may not be necessary" as officers of the Police Force were authorised in any event to provide the assistance requested by a parent in respect of a missing child in the ordinary course of providing police services. Relevantly, ss 6(2)(a) and 6(3)(b) of the Police Act 1990 (NSW) provide:

6 Mission and functions of NSW Police Force

(1)   The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2)    The NSW Police Force has the following functions—

(a)    to provide police services for New South Wales,

…

(3)    In this section—

police services includes—

…

(b)    the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way…

67. As I understand the balance of her Honour's reasons, she decided that the Court did have the power to remove the Local Court proceedings to this Court, and having made an order for removal, her Honour made orders pursuant to ss 67T and 67U of the Family Law Act, to operate until 1 November 2023 or further order, that all officers of the NSW Police Force were authorised and directed to recover Neil and under s 67Q, that they deliver Neil to the Secretary, or the Secretary's delegate.

68. In the balance of her judgment, Henry J explained in a comprehensive way why the division of powers between Divisions 1 and 2 of the Federal Circuit and Family Court of Australia and amendments to the s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act1987 (Cth) that took effect on 1 September 2022 had the effect that jurisdiction to make recovery orders under the Family Law Act could no longer be exercised by this Court as cross-vested jurisdiction of what had formerly been the Family Court of Australia. Her Honour also explained why certain local courts in this State retained jurisdiction to make recovery orders under the Family Law Act and why this Court could exercise the local court’s jurisdiction after making an order for the removal of the proceedings into this Court.

69. Consequently, as the issues that her Honour was required to decide were framed, it was not necessary for her Honour to decide whether the Court had an alternative power simply to make the extended recovery orders under the Court's parens patriae jurisdiction, and she did not do so.

70. On the present application, the plaintiffs asked the Court to make the order requesting and directing all members of the NSW Police Force to recover Emma and to deliver her to the delegate of the Secretary immediately on the basis of the parens patriae jurisdiction. That was evidently done in order to avoid the risk of additional delay that would have ensued if the plaintiffs were first required to prepare and file an application in a local court that had jurisdiction to make a recovery order, so that those proceedings could be removed to this Court on the same basis as occurred in Re Neil (No 5).

71. At the time I heard the plaintiffs’ urgent application, I considered it to be self-evident on the facts outlined above that the Court would not be justified in imposing any delay in the making of the secure accommodation and recovery orders that could properly be avoided.

72. In my opinion, none of the authorities that I have referred to above have decided on a considered basis that the parens patriae jurisdiction of this Court does not empower it to make a recovery order directed at officers of the NSW Police Force. In particular, none of the authorities have explained why a jurisdiction that is said to be unlimited is in fact limited in this respect.

73. In the short judgment of Powell J in Vaughan v Vaughan, Powell J decided without reference to authority that he did not have power to order the issue of a “warrant” against the father in support of the writ of habeas corpus that had already been issued, and he also decided that he did not have power to make an order "binding" on the police authorities. This was in the context where there was apparently evidence before his Honour that such an order would have obliged the police authorities to act counter to their then current practice, which was that they would not take steps to assist in the service of the writ of habeas corpus unless the father came under police notice for some form of offence.

74. The plaintiffs made a submission based upon the comment at [14] in Re Jules by Brereton J that he "was concerned that the Court did not, at least in its parens patriae jurisdiction, have power to make the orders sought conferring authority on the officers of the New South Wales Police Force to search and take custody of the child" (emphasis added), that his Honour's judgment should not be treated as being a statement of a considered view that the power did not exist. However, it is to be noted that Brereton J said in the same paragraph that his concern was "subsequently confirmed" by reference to the judgment of Powell J in Vaughan v Vaughan.

75. As the Attorney General's submissions to Henry J in Re Neil (No 5) attest, the "police services" that are provided by the NSW Police Force under the Police Act now extend to the protection of persons from injury or death in any way. The evidence in this case shows that the Police Force is prepared to cooperate with and assist the plaintiffs, as is shown by the arrangements that were made for the recovery of Emma, if necessary, and her transport to Secure House.

76. Furthermore, s 245E of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides:

245E Co-ordination of services

Prescribed bodies are, in order to effectively meet their responsibilities in relation to the safety, welfare or well-being of children and young persons, required to take reasonable steps to co-ordinate decision-making and the delivery of services regarding children and young persons (including, where applicable, in relation to provision of prioritised access to appropriate services to children or young persons at risk of significant harm).

77. By s 245B(1) of that Act, “prescribed body” is defined to mean, inter alia, “(a) any body or organisation specified in section 246(6)…” That sub-section relevantly provides:

(6)   In this section—

prescribed body means—

(a)   the NSW Police Force, a Public Service agency or a public authority…

78. Consequently, the position is that not only is it a “police service” provided by the NSW Police Force to protect Emma from injury or death in any way, but the Police Force and the Department administered by the Secretary have a statutory duty in relation to Emma’s safety and welfare to take reasonable steps to coordinate decision-making and the delivery of services relating to her, and, as may be expected, the Secretary and relevant officers of the NSW Police Force have anticipated the making of secure accommodation and recovery orders by the Court by agreeing to practical arrangements to facilitate the implementation of those orders.

79. Those circumstances invite contemplation of what is the real meaning and legal effect of the recovery orders that have historically been made by this Court, based upon cross-vested Family Court jurisdiction, which have been formulated in the terms of authorising and directing the officers of the NSW Police Force to recover the subject young person, using terms that arise out of the wording of s 67Q of the Family Law Act. It cannot rationally be intended that the order would operate personally against every officer of the NSW Police Force, such that they would be required immediately to cease what they were doing and collectively act to recover the young person. Each officer would not be liable for punishment for contempt by failing to implement the order. In reality, the order is in the nature of an administrative order intended to cause the NSW Police Force, through the agency of some officer appointed for that purpose by the Commissioner of Police, to make suitable arrangements to enable appropriate officers to implement the order. The order could not impose personal obligations on all officers without them being joined to the proceedings or being personally served with the orders.

80. For my own part, I consider that, as the parens patriae jurisdiction is described in authority binding on me as being practically unlimited, this Court must be taken to have jurisdiction to make recovery orders unless that jurisdiction can be shown to be excluded by some paramount power. It is not necessary for some external conferral of jurisdiction to be found before it can be exercised. It may be thought difficult to conjure up ways to rationally limit the unlimited. Furthermore, as the future cannot be foretold, it may be unwise to impose arbitrary limitations on the jurisdiction. I respectfully agree with the reasons given by Henry J for making the interlocutory recovery orders in Re Neil (No 5). 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, 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 NSW Police Force to search for, find and deliver Emma to the Secretary or the Secretary’s delegate.

81. It would probably require an extreme case for the Court to consider making a recovery order under the parens patriae jurisdiction against a named person, whether an officer of the NSW Police Force or not, in circumstances where it was intended that the person be required to execute the order on pain of punishment for contempt. It would be necessary to make the person a party to the proceedings, and, if the circumstances justified the making of the order ex parte, it might be necessary for the order to be made subject to a grant of leave to the person to apply to vacate it. However, for the reasons that I have given above, I do not think that the conventional recovery orders are intended to operate in that way.

82. It may be more correct in these circumstances to treat the order for recovery that the Court makes as an authorisation in favour of the officers of the NSW Police Force. That would have the effect of establishing that the officers who provided the police services to Emma contemplated by s 6 of the Police Act were acting with the authority of the Court even if, at the time Emma was recovered, she was not acting in a manner that would ordinarily justify the police officers in detaining her or limiting her freedom. The relevant officers may have statutory authority in the exercise of their duty to decide for themselves that the circumstances justify their recovering Emma and delivering her to the Secretary or the Secretary’s delegate. But the circumstances and the urgency of the situation may not realistically permit the relevant officers to make that decision in the proper exercise of their sworn duties. It may be that the true effect of the Court’s exercise of its parens patriae jurisdiction to make a recovery order in the conventional form is to facilitate and augment the ability of the relevant officers of the NSW Public and Police Services to act with the necessary expedition, effectiveness and authority to protect the subject young person.

78. Although the expression "authorise and direct" appears to have derived from the orders that were formerly made under the cross-vested Family Law Act jurisdiction because of the definition of "recovery order" in s 67Q, which uses the expression "authorising or directing", there may be scope in the future to give further thought to the appropriateness of the order containing expressions of command.

79. 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 NSW 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.

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Decision last updated: 13 September 2023