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)

1. 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.

1. 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.

1. 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 or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;

(d) authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:

(i) a parent of the child; or

(ii) a person described in subparagraph (a)(ii), (iii), (iv) or (v); or

(iii) some other person on behalf of a person described in subparagraph (i) or (ii);

(e) giving directions about the day-to-day care of a child until the child is returned or delivered to another person;

(f) prohibiting a person from again removing or taking possession of a child;

(g) authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.

1. The consequences of such an order are set out in s 67R and s 67S. Section 67T identifies those who have standing to apply for a recovery order; they include, under s 67T(caa), a person who is responsible for the child under a parenting order. It is at least arguable that, although the Minister has parental responsibility for the child, it is not under a parenting order of the type referred to in the Family Law Act. However, s 67T(d) confers standing on "any other person concerned with the care, welfare or development of the child" and the Minister plainly falls within that provision.

1. Section 67V provides that in deciding whether to make a recovery order, the Court must regard the best interests of the child as a paramount consideration. The factors which informed the Court's original decision to make, and then to continue, secure accommodation orders, indicate that having regard to the evidence before it, the Court concluded that the case was one in which the interests of the child required the radical and extreme step of a secure accommodation order. In those circumstances those same factors must indicate that it is not in the interests of the child that she be away from that secure accommodation and, in a sense, a fugitive whose whereabouts are unknown and is at large. I do not, by these observations, mean to suggest that she is a fleeing criminal - far from it - but the decision that her best interests require that she be in secure accommodation cannot be reconciled with her being at large.

1. I should say that Ms Hall, who appears as the child's separate representative, supports the application for a recovery order.

1. In those circumstances I am satisfied that, having regard to the best interests of the child, a recovery order should be made. I grant leave for the plaintiffs to file a Notice of Motion in the form initialled by me, dated this day placed with the papers. I direct that the motion be returnable instanter. I dispense with service of this motion. I read the affidavit of Andrew Schact sworn 4 April 2014.

1. Pursuant to the (Cth) Jurisdiction of Courts Cross Vesting Act, s 4, and (Cht) Family Law Act, s 67Q the Court orders that:

(1)   The Sheriff and all the Sheriff's officers and all officers of Australian Federal Police are authorised and directed, with such assistance as he/she or they may require, and if necessary by force:

(a)   to recover the child [name] born on [date] (in these proceedings known as "Lee") and to deliver her to a delegate of the Minister for Family and Community Services at [address] in Bradbury.

(b)   to stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place for the purpose of finding the child.

(2)   These orders be entered forthwith.

**********

Decision last updated: 12 December 2014