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Re Neil (No 5)

Re Neil (No 5)

Case [2022] NSWSC 1704 13 December 2022

Jurisdiction

Standing

Child Welfare

Best Interests of the Child

Civil Litigation & Procedure

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Neil (No 5) [2022] NSWSC 1704
Hearing dates: 8 December 2022. Further submissions 9 December 2022.
Date of orders: 9 December 2022
Decision date: 13 December 2022
Jurisdiction: Equity
Before: Henry J
Decision:
Orders made for Local Court proceedings instituted by the Plaintiffs to be removed to the Supreme Court of NSW and consolidated with these proceedings and for a recovery order under ss 67T and 67U of the Family Law Act 1975 (Cth): see [141].

Catchwords:
CIVIL PROCEDURE – where plaintiffs seek removal to the Supreme Court of Local Court proceedings seeking a recovery order under the Family Law Act 1975 (Cth) – where recovery orders relate to a child the subject of secure accommodation orders made by the Supreme Court in its parens patriae jurisdiction – whether Local Court of NSW is a court of summary jurisdiction under the Family Law Act1975 (Cth) – whether Supreme Court has power to make a removal order under s 46(3A) of Family Law Act 1975 (Cth) – whether making removal and recovery orders are in the child’s best interests
JURISDICTION – cross-vesting – whether the Supreme Court has jurisdiction to make a recovery order under Family Law Act 1975 (Cth) following enactment of Federal Circuit and Family Court of Australia Act 2021 (Cth) and amendment to Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – where Supreme Court is conferred with jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) – differences between jurisdiction conferred on ‘Division 1’ and ‘Division 2’ Courts of the Federal Circuit and Family Court of Australia – whether Supreme Court has jurisdiction to make recovery order under Family Law Act 1975 (Cth) consequent upon removal of recovery order proceedings pending in Local Court of NSW

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Children and Young Persons (Care and Protection) Act) 1998 (NSW)
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Family Law Reform Act 1995 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Local Court Act 2007 (NSW)
Police Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ahmad v Mohamed [2022] NSWSC 1445
Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315; [1986] HCA 22
Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3
Aviani v Loh (No 2) [2022] NSWSC 1148
BOC v MDL [2019] NSWSC 278
Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193
Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; [2006] HCA 22
Grassby v the Queen (1989) 168 CLR 1; [1989] HCA 45
Hugh v…

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 5)

Details

AGLC: Re Neil (No 5) [2022] NSWSC 1704
Case: [2022] NSWSC 1704
Decision Date: 13 December 2022

CaseChat Overview and Summary

The plaintiffs in this case sought the removal of proceedings from the Local Court of New South Wales to the Supreme Court of New South Wales. The proceedings in question involved a recovery order under the Family Law Act 1975 (Cth). The dispute centred around a child who was the subject of secure accommodation orders made by the Supreme Court in its parens patriae jurisdiction. The plaintiffs argued that the Local Court of New South Wales was not a court of summary jurisdiction under the Family Law Act 1975 (Cth) and that the Supreme Court had the power to make a removal order under section 46(3A) of the Act. They further contended that making both the removal and recovery orders was in the child's best interests.

The court was required to determine several legal issues, including whether the Supreme Court had the jurisdiction to make a recovery order under the Family Law Act 1975 (Cth) following the enactment of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the amendment to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The court also needed to consider whether the Supreme Court had the jurisdiction to make a recovery order under the Family Law Act 1975 (Cth) consequent upon the removal of recovery order proceedings pending in the Local Court of New South Wales. Furthermore, the court had to examine the differences between the jurisdiction conferred on the 'Division 1' and 'Division 2' Courts of the Federal Circuit and Family Court of Australia.

In its decision, the court concluded that the Supreme Court did not have the jurisdiction to make a recovery order under the Family Law Act 1975 (Cth) after the enactment of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the amendment to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The court held that the Local Court of New South Wales was indeed a court of summary jurisdiction under the Family Law Act 1975 (Cth). Consequently, the Supreme Court did not have the power to make a removal order under section 46(3A) of the Act. The court also found that making both the removal and recovery orders was not in the child's best interests. The plaintiffs' application for removal was therefore dismissed.

Orders