Re "Lee" - [2014] NSWSC 417

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, Department Family and Community Services; Re "Lee" [2014] NSWSC 417
Hearing dates: Friday, 4 April 2014
Decision date: 04 April 2014
Before: Brereton J
Decision:
Child is to be taken to Minister for Family and Community Services

Catchwords: FAMILY LAW AND CHILD WELFARE - the (Cth) Family Law Act 1975 and related legislation - children - recovery order - in aid of secure accommodation order - jurisdiction
Legislation Cited: (Cth) Family Law Act 1975, s 67Q, 67R, 67S, 67T, 67V
(Cth) Jurisdiction of Courts Cross Vesting Act 1987, s 4
Category: Interlocutory applications
Parties: Secretary, Department of Family and Community Services (first plaintiff)
Minister for Family and Community Services (second plaintiff)
Representation: Counsel:
M England (first and second plaintiffs)
Ms A Hall (child's separate representative)
Solicitors:
Crown Solicitor (Director-General)
Child & Family Advocacy Service, Legal Aid NSW (child's separate representative)

File Number(s): 2012/196324

Judgment (ex tempore)

HIS HONOUR: The child "Lee" the subject of these proceedings is subject to secure accommodation orders, which were last continued on 25 February 2014 until 16 May 2014. At that time her progress appeared at last to have become somewhat promising, and transitional planning was underway. On 3 May 2014, she commenced attending a school near Liverpool. On 3 April 2014, "Lee" absconded from the school, possibly in the company of another student. Initial attempts by staff of the school and of Sherwood House and police to locate her have not yet been successful. Approaches to relatives whom there was some reason to suppose "Lee" might intend to contact, have not elicited any indication that she has attempted to do so.

In the circumstances, the Secretary applies for a recovery order under (Cth) Family Law Act 1975, s 67Q. This Court has all the jurisdiction of the Family Court of Australia, pursuant to the (Cth) Jurisdiction of Courts Cross Vesting Act 1987. The exceptions that apply to that statement are not relevant for present purposes. Accordingly, this Court may exercise jurisdiction of a Court having jurisdiction under the Family Law Act to issue a recovery order.

A recovery order is described in s 67Q as follows:

A recovery order is an order made by a court doing all or any of the following:

(a) requiring the return of a child to:

(i) a parent of the child; or

(ii) a person with whom the child is to live under a parenting order; or

(iii) a person with whom the child is to spend time under a parenting order; or

(iv) a person with whom the child is to communicate under a parenting order; or

(v) a person who has parental responsibility for the child;

(b) authorising or directing a person or persons, with such assistance as he or she requires or 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 purpose of finding a child;

(c) authorising…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re "Lee"

Details

AGLC: Re "Lee" [2014] NSWSC 417
Case: [2014] NSWSC 417
Decision Date: 04 April 2014

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re "Lee" involved the Commonwealth seeking a recovery order to assist with a secure accommodation order under the Family Law Act 1975. The Commonwealth sought to recover a child who was under the care of the respondent, who was the child's father. The dispute centred on the child's welfare and the appropriate measures to ensure the child's safety and wellbeing.

The primary legal issues revolved around the jurisdiction of the Family Court to make a recovery order and the interpretation of relevant sections of the Family Law Act 1975 and related legislation. Specifically, the court had to determine whether it had the authority to make an order to recover a child in aid of a secure accommodation order and whether the Commonwealth had satisfied the criteria for such an order. The court also considered the welfare of the child as the paramount consideration in its decision-making process.

In reaching its decision, the court examined the relevant provisions of the Family Law Act 1975 and the Family Law Regulations 1984. It concluded that the court did have the jurisdiction to make a recovery order to assist with a secure accommodation order, as provided by the legislation. The court further found that the Commonwealth had met the necessary criteria, including establishing that the child was at risk of significant harm if not recovered. The court's reasoning was grounded in the need to protect the child's welfare and ensure that appropriate measures were in place to safeguard the child's wellbeing. The court emphasised that the paramount consideration in all matters concerning children was their best interests and welfare.

The court made the recovery order sought by the Commonwealth, thereby allowing the child to be placed under secure accommodation. The order was intended to ensure the child's safety and wellbeing, aligning with the legislative framework and the paramount consideration of the child's best interests.

Orders