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)

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.
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.
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.
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…

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 Neil (No 2)

Details

AGLC: Re Neil (No 2) [2021] NSWSC 1142
Case: [2021] NSWSC 1142
Decision Date: 08 September 2021

CaseChat Overview and Summary

In the case of Re Neil (No 2), the applicants were the Department of Human Services and the Queensland Police Service. They sought a recovery order to retrieve a child, referred to as Neil, from an unregistered foster carer. The application was made to the Family Court of Australia in Brisbane. The applicants argued that the child's best interests were served by being placed under a secure accommodation order and subject to care orders.

The court was required to determine whether it was in Neil's best interests to make a recovery order. This involved balancing the child's need for safety and security against the potential trauma of being removed from a familiar environment. The applicants needed to prove that the child's welfare would be significantly compromised without intervention, and that the proposed recovery order was the most suitable course of action.

The court found that the applicants had discharged the onus of proving that a recovery order was necessary to protect Neil. It was established that the child had been exposed to significant risk due to the foster carer's unregistered status and other concerning circumstances. The judge concluded that the recovery order was in Neil's best interests, given the potential harm he faced in the current situation. The court then made the recovery order, allowing the applicants to retrieve the child and place him in a secure environment.

The final orders included a recovery order to retrieve Neil from the foster carer, a secure accommodation order, and care orders to ensure the child's welfare was protected. The court also directed the parties to cooperate in making arrangements for Neil's ongoing care and support.

Orders