Re Neil (No 2)

[2021] NSWSC 1142

Supreme Court

New South Wales

Medium Neutral Citation:

Re Neil (No 2) [2021] NSWSC 1142

Hearing dates:

8 September 2021

Date of orders:

8 September 2021

Decision date:

08 September 2021

Jurisdiction:

Equity

Before:

Henry J

Decision:

Recovery order under Family Law Act 1975 (Cth) made in relation to the child known as Neil.

Catchwords:

CHILD WELFARE – Family Law Act 1975 (Cth) – recovery order sought in aid of secure accommodation and care orders – whether in child’s best interests to make recovery order

Legislation Cited:

Family Law Act 1975 (Cth), ss 67T, 67U, 67V

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

Cases Cited:

Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193

Re Kara [2020] NSWSC 1083

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
C McGorey (Plaintiffs)
M Levy, Solicitor (Child’s Separate Representative)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
Legal Aid NSW (Child’s Separate Representative)

File Number(s):

2021/98482

Publication restriction:

The orders made today prohibit the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Neil”).

Judgment – Ex Tempore (Revised)

1. HER HONOUR: In these proceedings, a child referred to as "Neil" is subject to secure accommodation and care orders that were first made on 28 April 2021 and have been continued until 5.00 pm on 10 September 2021.

2. The hearing today was scheduled to enable the plaintiffs and Neil's legal representative to provide the Court with an update as to Neil's progress with his placement at Sherwood House and to seek a further extension of the secure accommodation and care orders. In anticipation of the hearing, an affidavit dated 31 August 2021 had been filed on behalf of the plaintiffs which indicated that, although in the early stages, Neil had generally responded well to the Sherwood House program. On 6 September 2021, the plaintiffs provided a further update as there had been a significant development.

3. Late in the afternoon on 3 September 2021, Neil absconded from the Sherwood House program while on a walk with his carer. There had been no prior indications that Neil intended to run away.  Mr Browning, the Manager Casework within the Community Services division of the Department of Community and Justice with responsibility for Neil, gave evidence at the hearing today that a missing person report was made to the Campbelltown Police Station that day.

4. Attempts by Sherwood House, the police and his casework team to locate Neil have not yet been successful. Police had attended a house on the night of 6 September 2021 in response to a report of violence and spoke to Neil who was present at that house.  Unfortunately, the police who spoke to Neil were unaware that Neil was listed as missing or that he was subject to secure accommodation orders at Sherwood House and no steps were taken to return him to that program.

5. Neil's former carer has been in contact with the casework team to assist in locating Neil.  Information was received from his former carer that Neil was waiting to be picked up from a train station in Mount Druitt on the morning of 7 September 2021.  Efforts by police to locate him in that area were not successful.  As at this morning, there have been no further reported sightings of Neil or information as to his location.

6. In these circumstances, the plaintiffs seek a recovery order in relation to Neil under s 67U of the Family Law Act 1975 (Cth), in addition to orders extending the secure accommodation and care of Neil at Sherwood House.

7. This Court has all the jurisdiction of the Family Court of Australia, including its powers in relation to children, by virtue of s 4(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth). Accordingly, this Court has jurisdiction to issue a recovery order under the Family Law Act in relation to Neil.

8. Under Part VII, Division 8 of the Family Law Act, this Court has the power to make an order requiring the return of a child to a person who has parental responsibility for them.  The statutory powers include the power to authorise a person, including the New South Wales Police, to stop and search vehicles and premises, recover a child, using force if necessary, and deliver them to a person with parental responsibility for the child: see Family Law Act, ss 67Q–67Y; Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 at [21]; Re Kara [2020] NSWSC 1083 at [67].

9. The second plaintiff in these proceedings, the Minister for Families, Communities and Disability Services, has standing to seek the recovery order as they are the person who has parental responsibility for Neil and is therefore concerned with his care, welfare and development: s 67T(d) Family Law Act.

10. In deciding whether to make a recovery order under the Act, the paramount consideration is the best interests of the child: s 67V of the Family Law Act. 

11. The evidence which informed the Court's original decision to make the secure accommodation and care orders and the updating evidence before the Court satisfy me that it would be in Neil's best interests for a recovery order to be made today and for him to be returned to the Sherwood House program.

12. In my view, it is not in Neil's best interests for him to be away from secure accommodation, particularly in circumstances where his whereabouts in the community are unknown, he is only 13 years old and he has a significant prior mental health and criminal history.  As the evidence on the original application identified, "Neil's vulnerability puts him at high risk of being exposed to dangerous situations in the community, being exposed to unsafe people and escalating interactions with law enforcement and the criminal justice system." 

13. I am also satisfied that Neil’s return to the Sherwood House program is in his best interests.  The evidence filed in support of the continuing secure accommodation and care orders indicates that Neil was generally responding well to the structure of the Sherwood House program. He has had opportunities to, and has been engaging in, various educational, recreational and therapeutic activities as part of the program.  He has also been able to engage with a child and adolescent psychiatrist for medication management and a psychologist for behaviour support, assessments, consultation and therapy.  There is an opportunity for him to attend school once the COVID‑19 restrictions are lifted.

14. I also note that Neil's legal representative who appeared at the hearing this morning, Mr Levy, supports the recovery orders being made and Neil's return to Sherwood House. 

15. For these reasons, I make the following orders:

1. Pursuant to section 67T and section 67U of the Family Law Act 1975 (Cth), until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover [Neil] born [date] 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 purpose of finding [Neil], and delivering him pursuant to section 67Q(a)(v) of the Family Law Act 1975 (Cth) to the Secretary or the Secretary’s delegate on any day that [Neil] is located and recovered.

2. These orders be entered forthwith.

16. I also make orders extending the secure accommodation and care orders in relation to Neil at Sherwood House for a further three months and ancillary orders in accordance with the short minutes of order, which I have initialled and dated and will place with the file.

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Decision last updated: 09 September 2021