Re Neil (No 5)

[2022] NSWSC 1704

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 Sawer [2011] FAMCA 48

Johnstone v Commonwealth (1979) 143 CLR 398

Jones v Wrotham Park Settled Estates [1980] AC 74

MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28

New South Wales v Plum [2015] NSWSC 1566

O’Neill v O’Connell (1946) 72 CLR 101

Owners of ‘Ship Shin Kobe Maru’ v Empire Shipping CoInc (1994) 181 CLR 404; [1994] HCA 54

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Re Jarman; Ex parte Cook (1997) 188 CLR 595

Re Kara [2020] NSWSC 1083

Re Lee [2014] NSWSC 417

Re Sally [2009] NSWSC 1141

Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 (2010) 77 NSWLR 601; [2010] NSWSC 656

Singh v the Owners-Strata Plan 11723 [2012] NSWSC 519

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12; [2019] FCAFC 21

Wigmans v AMP Ltd (2021) 270 CLR 623; [2021] HCA 7

Wurz bht NSW Trustee & Guardian v Elawaad [2022] NSWSC 1404

Yu v Wang [2021] NSWSC 1280

Texts Cited:

Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category:

Procedural rulings

Parties:

Secretary, New South Wales Department of
Communities and Justice (First Plaintiff)
Minister for Families, Communities and Disability
Services (Second Plaintiff)
Attorney General of NSW (Amicus Curiae)

Representation:

Counsel:
T Prince and C McGorey (Plaintiffs)
J Davidson and A Sapienza (Amicus Curiae)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
Legal Aid NSW (Child’s Separate Legal Representative)
Attorney General for NSW (Amicus Curiae)

File Number(s):

2021/98482

Publication restriction:

The orders made in these proceedings 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

1. On 28 April 2021, this Court made secure accommodation orders in relation to Neil (not his real name), a teenage boy under the parental responsibility of the Minister for Families, Communities and Disability Services (Minister), that provide for the Secretary, Department of Communities and Justice (Secretary) to detain Neil at a secure residence, known as Sherwood House: Re Neil [2021] NSWSC 446. The secure accommodation orders have been the subject of review and extension by the Court on numerous occasions.

2. At a review hearing on 8 December 2022, the Court extended the secure accommodation orders, a non-publication and suppression order and ancillary orders until 16 March 2023. The application by the Secretary and the Minister (the Plaintiffs) was supported by Neil’s separate legal representative, Mr Levy, and the evidence satisfied me that it was in Neil’s best interests to extend the orders previously made. In particular, I was satisfied that Neil would be at risk if he was not held in secure accommodation and his welfare would be best promoted if he continued to receive the intensive interventions available through the Sherwood House Program.

3. These reasons deal with another application made by a notice of motion filed by the Plaintiffs seeking an order under s 46(3A) of the Family Law Act 1975 (Cth) (FL Act) for this Court to remove Local Court proceedings instituted by the Plaintiffs that seek recovery orders in relation to Neil under ss 67T and 67U of the FL Act to this Court, and for this Court to then hear and determine the recovery order application.

4. The circumstances in which the Plaintiffs’ notice of motion was filed and the appearance of the Attorney General as amicus curiae are described below. Relevantly, at a prior review hearing, a question had arisen as to whether this Court continued to have cross-vested jurisdiction to make recovery orders under the FL Act following the enactment of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act) and amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth Cross-vesting Act) which took effect on 1 September 2021 (1 September 2021 legislative changes).

5. On 9 December 2022, I made removal and recovery orders in terms similar to those sought by the Plaintiffs’ notice of motion. These are my detailed reasons for making those orders. In summary, I concluded that:

1. as a consequence of the 1 September 2021 legislative changes, this Court does not have cross-vested jurisdiction under the Cth Cross-vesting Act to make a recovery order under the FL Act in relation to Neil;

2. this Court has power to make a removal order under s 46(3A) of the FL Act in relation to recovery order proceedings commenced by the Plaintiffs in a Local Court of NSW, as a court of summary jurisdiction;

3. upon a removal order being made under s 46(3A) of the FL Act, this Court has jurisdiction to hear and determine the Plaintiffs’ application for a recovery order under s 67T and 67U of the FL Act in relation to Neil; and

4. based on the evidence before the Court, it was in Neil’s best interests to make the removal and recovery orders sought by the Plaintiffs.

6. At this point, it seems appropriate to record that the 1 September 2021 legislative changes may have had some unintended consequences on the jurisdiction of this Court. The impact of the legislative changes has also been noted in other decisions of this Court: see, for example, Yu v Wang [2021] NSWSC 1280 at [18] (Beech-Jones CJ in CL); Aviani v Loh (No 2) [2022] NSWSC 1148 at [239] and [255] (Meek J); Ahmad v Mohamed [2022] NSWSC 1445 at [16] and [17] (Peden J); Wurz bht NSW Trustee & Guardian v Elawaad [2022] NSWSC 1404 at [41] and [68].

Further background to application

7. On 23 September 2022, a review hearing was held at which the Plaintiffs sought and were granted an extension to Neil’s secure accommodation orders until 8 December 2022. At that hearing, the Plaintiffs also asked this Court to make a recovery order under ss 67T and 67U of the FL Act until 22 March 2023 that authorised and directed all officers of the NSW Police Force to locate and recover Neil upon the request of the Secretary or the Secretary’s delegate 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 purposes of finding Neil, and deliver him pursuant to s 67Q(a)(v) of the FL Act to the Secretary or their delegate.

8. Recovery orders were sought by the Plaintiffs as Neil had a history of absconding from the Sherwood House Program and was engaging in risky behaviours while he was away. He had absconded on 22 September 2022 and had not returned at the time of the hearing.

9. The Plaintiffs’ application for a recovery order was said to invoke the cross-vested jurisdiction under s 4(1) of the Cth Cross-vesting Act. This was in the context where the Court had made a recovery order on that basis on 8 September 2021: Re Neil (No 2) [2021] NSWSC 1142.

10. At the 23 September 2022 hearing, the Court referred the parties to some of the 1 September 2021 legislative changes and raised the question of whether this Court continued to have cross-vested jurisdiction under the FL Act. In particular, reference was made to the amendments to the Cth Cross-vesting Act that conferred on this Court the jurisdiction of the court now known as the Federal Circuit and Family Court of Australia (Division 1), and the enactment of the FCFCA Act which appeared to provide that the jurisdiction of the Division 1 Court is more limited than the jurisdiction of the court previously known as the Family Court.

11. With no criticism intended, the Plaintiffs’ counsel and Mr Levy were not in a position to properly consider and respond to the jurisdiction issue at the hearing. As I was not satisfied that this Court had cross-vested jurisdiction under the Cth Cross-vesting Act, I declined to make a recovery order under the FL Act. Given there was some urgency regarding Neil’s position, the Court acceded to the Plaintiffs’ revised application (supported by Mr Levy) and made interim orders in the exercise of the Court’s parens patriae jurisdiction in the following terms:

(1)    Until 5:00pm on 4 October 2022, members of the NSW Police Force holding a position that is designated under the Police Act 1990 (NSW) are authorised, subject to order 2, to:

(a)   assist in locating [Neil] and/or his return to secured premises referred to in order 2 if requested to by the Secretary or the Secretary’s nominees to do so; and

(b)   for the purposes of returning [Neil], or assisting others to return [Neil], to the secured premises, to use reasonable force if necessary for the restraint of [Neil] for the purposes of:

(i)   transporting him to the secured premises,

(ii)   preventing him injuring himself and or others, and/or

(iii)   permitting others to administer [Neil’s] medication as approved by the Secretary or the Secretary’s nominees or otherwise authorised under statute.

(2)   The authority conferred under order 1 may only be used if the member of the Police is requested by the Secretary or the Secretary’s nominees to assist in returning [Neil] to the secured premises.

12. I considered that the Court had power to make these orders under the parens patriae jurisdiction as, in essence, they were simply expanding the persons who were authorised under the extant secure accommodation orders to exercise powers of restraint for Neil to members of the NSW Police Force when requested by the Secretary (or nominees) to assist in the return of Neil to the secured premises: Re Neil (Supreme Court (NSW), Henry J, 23 September 2022, unrep).

13. On 8 November 2022, the Plaintiffs filed a notice of motion, the subject of these reasons (Motion) seeking the following orders:

1. Pursuant to section s. 46(3A)(c) of the Family Law Act 1975 (Cth), order that the Local Court proceedings concerning Neil, which were instituted by the Secretary on 8 November 2022, be removed from the Local Court to this Court.

2. Pursuant to section 67T and section 67U of the Family Law Act 1975 (Cth), until 1 November 2023 or until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover the young person [Neil], 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 purposes of finding Neil, and delivering him pursuant to section 67Q(a)(v) of the Family Law Act 1975 (Cth) to the Secretary, Department of Communities and Justice, or the Secretary’s delegate, on any day that Neil is located and recovered.

14. Short written submissions were received from the Plaintiffs and Mr Levy in anticipation of the hearing of the Motion, which was listed before me on 16 November 2022.

15. On 16 November, the Plaintiffs did not move on their Motion because they had been unable to file with the Local Court of NSW their originating application seeking a recovery order in relation to Neil pursuant to ss 67U and 67T of the FL Act. However, there was some discussion about the matters raised by the Plaintiffs’ Motion (as referred to in the parties’ written submissions) and, in view of the jurisdiction issues raised, the Court raised the prospect of appointing a contradictor or amicus curiae. The Plaintiffs indicated they would seek instructions on that and would file supplementary written submissions, and the Motion was adjourned for hearing on 8 December 2022 (the next secure accommodation order review hearing).

16. On 23 November 2022, the Plaintiffs (supported by Mr Levy) sought, and the Court granted, orders in the exercise of the Court’s parents patriae jurisdiction in the same terms as the orders out at [11], save that they continued until 8 December 2022: Re Neil (Supreme Court (NSW), Henry J, 23 November 2022, unrep). This was in the context where the evidence indicated that, since 8 September, Neil had absconded 11 times from the Sherwood House Program, was often missing for several days, and while away had engaged in illicit drug use and been exposed to dangerous situations within the community.

17. Later that day, the Plaintiffs’ originating process seeking recovery orders under ss 67U and 67T of the FL Act was accepted for filing in the Downing Centre Local Court and was allocated proceedings number 2022/358650 (Local Court Proceedings).

18. On 30 November 2022, orders were made by consent granting leave to the Attorney General of NSW to appear as amicus curiae in respect of the Plaintiffs’ Motion and for the service by the amicus of written submissions on the following issues:

1. whether the Supreme Court of NSW is, by operation of the Cth Cross-vesting Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Cross-vesting Act) vested with jurisdiction to make a recovery order under the FL Act;

2. in the event that an application is filed by the Plaintiffs in the Local Court of NSW:

1. whether the Supreme Court of NSW can remove proceedings commenced in the Local Court of NSW to the Supreme Court of NSW pursuant to s 46(3A) of the FL Act, where such proceedings seek a recovery order under the FL Act, and

2. whether, following the removal of Local Court of NSW proceedings into the Supreme Court of NSW pursuant to s 46(3A) of the FL Act, the Supreme Court of NSW has jurisdiction to make a recovery order under the FL Act;

3. whether, in the event the Supreme Court of NSW does not have jurisdiction to make a recovery order under the FL Act, the Supreme Court of NSW can make an order to the same effect as a recovery order in the exercise of its parens patriae jurisdiction; and

4. whether the orders made by the Court on 23 November 2022 are appropriate and ought to be continued in their current or amended form.

19. Prior to the 8 December 2022 hearing, the Court received supplementary written submissions from the Plaintiffs, written submissions from the Attorney General, and confirmation from Mr Levy that he did not wish to make any further submissions.

20. At the 8 December 2022 hearing, the Plaintiffs read affidavits of Nathan Browning affirmed 7 and 25 November 2021. Mr Browning, Manager Casework, Metropolitan Intensive Support Services, Community Services Division of the Department of Communities and Justice, has casework management responsibility for Neil.

21. Mr Browning gives evidence that Neil is currently in Phase Two of the Sherwood House Program, with the focus being on safety, identity, engagement in therapy and working towards reintroducing a level of community presence. Mr Browning’s evidence outlines that Neil has been involved in a number of behavioural incidents, some of which are categorised as ‘high impact’ and refers to incidents of absconding and risky behaviours. Mr Browning’s evidence also details Neil’s education and development, his behavioural support plan, the psychological and cultural support he receives, his physical and mental health, including his medication management, and the regular meetings, sessions, programs and reviews which Neil attends, including with family members. According to Mr Browning, Neil’s absconding behaviour has impacted the Program’s ability to provide Neil with the full range of intervention strategies and Neil continues to place himself and others at risk of harm.

The Plaintiffs’ application

22. The Plaintiffs’ contentions as to why the Court should make the removal and recovery orders sought in the Motion under the FL Act may be summarised as follows:

1. as a consequence of the 1 September 2021 legislative changes, this Court no longer has cross-vested jurisdiction under the Cth Cross-vesting Act to make recovery orders under the FL Act;

2. the Local Court of NSW, as a court of summary jurisdiction, has jurisdiction under s 69J of the FL Act in relation to recovery order proceedings;

3. this Court has a discretionary power under s 46(3A)(c) of the FL Act to remove pending Local Court recovery order proceedings to this Court;

4. once the pending Local Court recovery order proceedings are removed to this Court, this Court will have all the necessary jurisdiction under the FL Act to hear and determine the recovery order proceedings; and

5. this Court should exercise its discretion to remove the Local Court Proceedings to this Court because of its knowledge and experience having supervised Neil’s secure accommodation order proceedings since 28 April 2021; and

6. this Court should make a recovery order in relation to Neil for 12 months because of his tendency to abscond and the risks to him and others while he is away from the Sherwood House Program.

23. The Plaintiffs also submitted that the orders made by the Court on 23 September and 23 November 2022 were authorised under the parens patriae jurisdiction. However, their position is that a recovery order under the FL Act is preferable as it would appear from existing authorities (referring to Re Kara [2020] NSWSC 1083 at [66] (Re Kara); Re Sally [2009] NSWSC 1141 at [54] and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 at [14] (Re Jules)) that there are aspects of a recovery order under the FL Act that cannot be made under the parens patriae jurisdiction, such as directing or compelling police officers to act, and authorising or directing them to search or enter vehicles, premises and places without a warrant.

23. In his written submissions, Mr Levy accepted that a recovery order was undoubtedly in Neil’s best interests but had not formed a concluded view as to whether this Court is able to rely on the Cth Cross-vesting Act for jurisdiction to make a recovery order.

24. Mr Levy contended that this Court could not make a removal or recovery order relying on s 46(3A)(c) of the FL Act. He submitted that s 46(3A) of the FL Act only operates where a court of summary jurisdiction is dealing with a matrimonial or de facto financial cause, Div 12 of Pt VII of the FL Act provides for an exhaustive regime for the institution of proceedings and the jurisdiction of courts dealing with matters arising under that Part, any reliance on s 46(3A) conflicts with Div 12, and that ss 46(3A) and 46(4) of the FL Act do not establish that this Court has jurisdiction to make a recovery order, even if it concluded that a removal of the Local Court Proceedings to this Court is possible.

25. Mr Levy also submitted that if this Court is unable to make a recovery order under the FL Act then the Plaintiffs could obtain such an order from the Federal Circuit and Family Court of Australia.

26. The Attorney General agreed with the submissions of the Plaintiffs on jurisdiction and power, as outlined at [22(a)-(f)] above and made supplementary submissions in support of those matters.

27. The Attorney General also agreed with the Plaintiffs that the orders made on 23 November 2022 were authorised under the parens patriae jurisdiction. While no objection was raised to the continuation of such orders if a recovery order under the FL Act was not made, the Attorney General submitted that Order 1(a) (which authorised members of the NSW Police Force to assist in locating Neil and/or returning him to Sherwood House if requested to do so by the Secretary) may not be necessary as they are otherwise authorised to provide assistance requested by a parent in respect of a missing child in the ordinary course of providing police services: Police Act 1990 (NSW), ss 6(2)(a), 6(3)(b).

28. The parties’ written submissions, as outlined above was supplemented by oral submissions at the 8 December 2022 hearing.

29. I was greatly assisted by the written and oral submissions from counsel for the Plaintiffs and the Attorney General and from Mr Levy. Some of what follows is taken from their submissions.

The FCFCA Act

31. On 1 September 2021, the FCFCA Act commenced and restructured the former Family Court of Australia and Federal Circuit Court of Australia.

32. Amongst other things, the FCFCA Act provides that the court previously known as the Family Court of Australia is now known as the Federal Circuit and Family Court of Australia (Division 1) (Division 1 Court) and is a superior court of record and a court of law and equity, and the court previously known as the Federal Circuit Court of Australia is now known as the Federal Circuit and Family Court of Australia (Division 2) (Division 2 Court) and is a court of record and a court of law and equity: FCFCA Act, ss 8(1)-(2), 9(1) and 10(1).

Recovery orders under the FL Act

33. Part VII of the FL Act is headed ‘Children’ and contains sections relating to proceedings for a recovery order under the FL Act, which are contained in Subdiv C of Div 8 of Pt VII.

34. A recovery order is defined 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.

35. Section 67T identifies who may apply for a recovery order and relevantly provides that any person concerned with the care, welfare or development of a child may apply for a recovery order in relation to a child: s 67T(d).

36. The Minister has parental responsibility for Neil and is concerned with his care, welfare and development and, thus, is a person who may apply for a recovery order under the FL Act.

37. Section 67U provides that, in proceedings for a recovery order, the court may, subject to s 67V of the FL Act, make such recovery order as it thinks proper. Section 67V provides that, in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

38. Section 67W provides that a recovery order remains in force for the period specified or 12 months, whichever is the shorter period.

Jurisdiction to make recovery orders under the FL Act

39. Prior to 1 September 2021, s 69H of the FL Act conferred jurisdiction in relation to matters arising under Pt VII of the FL Act on the Family Court of Australia (s 69H(1)); each Family Court of a State (s 69H(2)), the Supreme Court of the Northern Territory (s 69H(3)) and the Federal Circuit Court of Australia (s 69H(4)).

40. Following amendments made on 1 September 2021, s 69H of the FL Act confers jurisdiction in relation to matters arising under Pt VII of the FL Act on the Division 2 Court (s 69H(1)), each Family Court of a State (s 69H(2)), and the Supreme Court of the Northern Territory (s69H(3)). That jurisdiction includes proceedings for a recovery order.

41. In addition, s 69J of the FL Act confers jurisdiction in relation to matters arising under Pt VII of the FL Act (including recovery orders) on each ‘court of summary jurisdiction of each State’. Section 69J relevantly provides:

Jurisdiction of courts of summary jurisdiction

(1)     Subject to subsection (5), each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under this Part.

Note:   This section may apply to proceedings heard in a court prescribed by the regulations for the purposes of section 69GA in the same way as this section would apply if those proceedings were heard in a court of summary jurisdiction.            

…

(3)     The Governor‑General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.            

(4)     Without limiting the generality of subsection (3), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:   

(a)     proceedings of specified classes;   

(b)     the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;   

(c)     the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.            

(5)     A court of summary jurisdiction must not hear and determine proceedings under this Part otherwise than in accordance with any Proclamation in force under subsection (3).            

(6)     The Governor‑General may, by Proclamation, declare that a Proclamation under subsection (3) is revoked on and from a specified day.            

(7)     If, under subsection (6), the Governor‑General declares that a Proclamation under subsection (3) is revoked:   

(a)    this Part (including subsection (3)) has effect as if the revoked Proclamation had not been made; but   

(b)     the effect of the revoked Proclamation on the jurisdiction of courts before the specified day is not affected.

Courts of summary jurisdiction

42. The expression ‘court of summary jurisdiction’ is not specifically defined in the FL Act. Section 2B of the Acts Interpretation Act 1901 (Cth) defines the term to mean:

any justice of the peace, or magistrate of a State or Territory, sitting as a court of summary jurisdiction.

43. A reference to summary jurisdiction is not limited to summary criminal jurisdiction and extends to any court for the giving of civil relief which operates by way of summary, that is to say, relatively informal procedures: Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12; [2019] FCAFC 21 at [24] – [27].

44. The Plaintiffs submitted, and I accepted, that the Local Court of NSW is a ‘court of summary jurisdiction’ for the purposes of the FL Act. But for any relevant provision of federal law, if the Local Court were to exercise jurisdiction under Pt VII of the FL Act, the proceedings would fall within the Local Court’s special jurisdiction under Pt 4 of the Local Court Act 2007 (NSW) (LC Act), as it would be exercising neither its summary criminal jurisdiction nor its civil jurisdiction under Pt 3, which is principally concerned with money claims. In exercising special jurisdiction, the Local Court acts in a summary way, akin to summary criminal proceedings: LC Act, ss 44, 45, 49, 50 and 66; Criminal Procedure Act1986 (NSW), ss 170, 172 and 178.

45. The Plaintiffs’ submissions stated that the only Proclamation in force under s 69J(3) of the FL Act was made on 14 June 2006, [1] which provides that on or after 1 July 2006, proceedings arising under Pt VII of the FL Act may not be instituted in, or transferred to, a court of summary jurisdiction in the Perth metropolitan region, other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. They submitted that, consequently, each Local Court of NSW (a court of summary jurisdiction), including the Downing Centre Local Court where the Local Court Proceedings were initiated, has jurisdiction to hear and determine proceedings for a recovery order under s 69J of the FL Act.

    1. Jurisdiction of Courts Summary Jurisdiction (Children) Proclamation 2006 (F2006L01798).

46. It was identified after the 8 December 2022 hearing that there is another Proclamation in force under s 69J(3) of the FL Act, which has the effect that the Downing Centre Local Court does not have jurisdiction to hear and determine recovery order proceedings under the FL Act, as described at [137] and [138] below.

47. The Plaintiffs also contended, and I accepted, that the Children’s Court of NSW is a court of summary jurisdiction for the purposes of the FL Act.

48. The Children’s Court of NSW exercises State civil jurisdiction under the Children and Young Persons (Care and Protection) Act) 1998 (NSW). Pursuant to s 93 of that Act, proceedings in the Children’s Court are to be conducted with ‘as little formality and legal technicality and form as the circumstances of the case permit’. That Court is also not bound by the rules of evidence.

Supreme Court’s jurisdiction under the Cth Cross-vesting Act

49. This Court is not a court of summary jurisdiction. It is also not the subject of a direct conferral of jurisdiction under s 69H or any other provision of the FL Act to make recovery orders, nor a direct conferral of jurisdiction by any other Act.

50. However, prior to 1 September 2021, s 4(1) of the Cth Cross-vesting Act relevantly provided:

4  Additional jurisdiction of certain courts             

(1)  Where:   

(a)     the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and   

(b)     the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:   

(c)     in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or …

51. Accordingly, the Supreme Court of NSW had jurisdiction to make recovery orders under the FL Act by virtue of s 69H of the FL Act and s 4(1) of the Cth Cross-vesting Act (as in force immediately prior to 1 September 2021): Re Jules at [21]; Re Lee [2014] NSWSC 417 at [2]; Re Kara at [67].

52. On 1 September 2021, s 4(1) of the Cth Cross-vesting Act was amended to read (amendments marked up):

4 Additional jurisdiction of certain courts           

(1)     Where:   

(a)     the Federal Court or the Family Court Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and   

(b)     the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:   

(c)     in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or         

53. Thus, from 1 September 2021, under the Cth Cross-vesting Act, this Court was relevantly invested with the jurisdiction of the Division 1 Court.

54. The original jurisdiction of the Division 1 Court is set out in s 25 of the FCFCA Act, which states:

25  Original jurisdiction            

(1)     The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:   

(a)     if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or   

(b)     if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or   

(c)     as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

55. Section 7 of the FCFCA Act defines ‘family law or child support proceeding’ to mean proceedings in respect of which the Division 2 Court has original jurisdiction under s 132.

56. The original jurisdiction of the Division 2 Court for family law or child support matters is set out in s 132 of the FL Act, and relevantly provides:

132  Original jurisdiction—family law or child support matters            

(1)     The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:   

(a)     with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975; or …

57. Sections 51 and 149 of the FCFCA Act relate to the discretionary transfer of family law proceedings from the Division 2 Court to the Division 1 Court, and provides that the transfer occurs by order of the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) (s 51) or by order of the Division 2 Court (s 149).

58. In my view, there is a difference between the jurisdiction of the former Family Court of Australia and the current Division 1 Court in relation to matters arising under Pt VII of the FL Act.

59. The former Family Court of Australia had jurisdiction directly conferred on it in relation to matters arising under Pt VII of the FL Act, by virtue of s 69H(1) of the FL Act (as it existed prior to the 1 September 2021 legislative changes). In contrast, s 69H(1) of the FL Act (in its current form) confers jurisdiction on the Division 2 Court and not on the Division 1 Court. The Division 1 Court is also not directly conferred with original jurisdiction in relation to proceedings which may be instituted under the FL Act (see FCFCA Act, s 25).

60. I accepted the Plaintiffs’ and the Attorney General’s submission that the effect of ss 25(1)(a) and (b) of the FCFCA Act is that, subject to a direct conferral of jurisdiction under the FL Act, the Division 1 Court does not have original jurisdiction in matters under the FL Act, unless a matter is transferred from the Division 2 Court to the Division 1 Court under either ss 51 or 149 of the FCFCA Act. In my view, this interpretation follows from the plain words of the statute which provide for the Division 1 Court to have original jurisdiction ‘if a matter… is transferred’ to the Division 1 Court by the Division 1 Court or by the Division 2 Court. In my view, ‘the matter’ the subject of family law or child support proceeding would be, for example, an application by a person for a recovery order under s 67U of the FL Act.

61. This interpretation is, in my view, supported by s 50(1) of the FCFCA Act, which prohibits the institution of family law or child support proceedings (other than appellate proceedings) in the Division 1 Court, and s 50(2) that provides that, if proceedings are instituted in contravention of subs 50(1), they are by force of the subsection, transferred to the Division 2 Court.

62. The Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019 (Cth) states, at page 32:

Subclause 25(1) provides that the FCFC (Division 1) would have original jurisdiction in family law or child support matters transferred to the Court by the Court under clause 51 or by the FCFC (Division 2) under clause 149, as set out in paragraphs 132(1)(a)-(d). Paragraphs 132(1)(a)-(d) set out the FCFC (Division 2)’s original jurisdiction in family law or child support matters. The reference to these paragraphs ensures that the original jurisdiction conferred on the FCFC (Division 1) under paragraphs 25(1)(a) and 25(1)(b) is the same as the original jurisdiction conferred on the FCFC (Division 2) under paragraphs 132(1)(a)-(d).

Limiting the FCFC (Division 1)’s original jurisdiction in family law or child support matters to those transferred to it facilitates the creation of a single point of entry to the federal family law courts, as court-users would need to file family law or child support matters in the FCFC (Division 2) at first instance.

63. This explanation could be read as suggesting that it was intended for there to be no difference between the jurisdiction of the Division 1 and Division 2 Courts, referring as it does to the original jurisdiction conferred on the Division 1 Court as being the same as the original jurisdiction conferred on the Division 2 Court. However, it also states that the Division 1 Court’s original jurisdiction in family law and child support matters is limited to those transferred to it and makes clear that the purpose of the changes was to create a ‘single point of entry’ to the federal family law courts for family law and child support proceedings through the Division 2 Court. It did so by conferring original jurisdiction on that Court and not on the Division 1 Court until ‘a matter… is transferred’ to the Division 1 Court, or unless the Division 1 Court is otherwise conferred with original jurisdiction by any other Act.

64. It follows, in my view, that if proceedings for a recovery order have not been instituted in and transferred from the Division 2 Court to the Division 1 Court (as they have not in this case), the Division 1 Court does not have original jurisdiction to hear and determine recovery order proceedings under the FL Act.

63. The Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) also suggests that the amendments to s 4(1)(a) of the Cth Cross-vesting Act (described at [52]) were not intended to ‘substantively alter’ the operation of that Act, stating at pp 184–185:

Items 508 and 509 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in section 4. Section 4 invests or confers additional jurisdiction on certain courts. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 4(1)(a) and (2)(b), and subsection 4(3).

66. However, the plain language of s 4(1)(a) of the Cth Cross-vesting Act provides for this Court to be invested with the jurisdiction of the Division 1 Court which, as outlined above, is more limited than the jurisdiction conferred on the Division 2 Court and the old Family Court of Australia. As no recovery order ‘matter’ has been transferred from the Division 2 Court to the Division 1 Court in relation to Neil, in my view, this Court does not have jurisdiction under s 4(1) of the Cth Cross-vesting Act to make a recovery order under the FL Act in relation to Neil.

67. Further, even if it was not intended to alter this Court’s jurisdiction, this is not a case where I consider that the Court could proceed on the basis that, as a matter of construction, it can ‘correct’ what might be considered to be an error in legislation by adopting a non-literal interpretation of the Cth Cross-vesting Act: Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 547-549; [2014] HCA 9 at [35]–[40] (French CJ, Crennan and Bell JJ); Jones v Wrotham Park Settled Estates [1980] AC 74 at 105–106. I accept the Plaintiffs’ submission that the language of s 4(1)(a) of the Cth Cross-vesting Act is too clear to admit of another construction.

68. The Plaintiffs’ written submissions posited some interpretations to the legislation, assuming that the Court was satisfied that the drafters and Parliament had overlooked a matter that needed to be dealt with, if the purpose of the legislation was to be achieved.

69. It was suggested that the reference to the ‘Federal Circuit and Family Court of Australia (Division 1)’ in s 4(1)(a) of the Cth Cross-vesting Act could be interpreted as if it read ‘Federal Circuit and Family Court of Australia (Division 1)’ or ‘Federal Circuit and Family Court of Australia (Division 1 or Division 2)’. It was also suggested that s 4(1)(a) of the Cth Cross-vesting Act could be interpreted to read as follows:

Where:

the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter or had such jurisdiction before 1 September 2021, whether that jurisdiction was or is conferred before or after the commencement of this Act;

70. However, as the Plaintiffs submitted, there are difficulties with these approaches, given they would significantly change the operation of the Cth Cross-vesting Act, noting that prior to the 1 September 2021 legislative changes, the State Supreme Courts were only invested with the jurisdiction of the Family Court, not that of the Federal Circuit Court.

71. As to the first approach, as the Federal Circuit Court of Australia had a range of jurisdiction (for example, jurisdiction in migration matters) that was not conferred on the State Supreme Courts, it seems unlikely that the Commonwealth Parliament intended that all of the jurisdiction of the Division 2 Court could be exercised by State Supreme Courts. As to the second approach, the Cth Cross-vesting Act operates in terms of the existing jurisdiction of the Federal Court and the Division 1 Court. As the jurisdiction of federal courts is not infrequently altered, it seems unlikely to have been intended by Parliament that the State Supreme Courts be conferred with all the jurisdiction which the Federal Court and the Family Court (now the Division 1 Court) may once have had, but potentially no longer possess.

72. For completeness and noting that the issue does not arise in this case, I should also record that the Plaintiffs referred to s 69GA of the FL Act, which provides that Subdiv C of Div 12 of Pt VII (which deals with the jurisdiction of courts) enables certain courts to be prescribed by regulations. As the Plaintiffs submitted, if this Court was prescribed by regulation, in respect of proceedings under the FL Act generally or in relation to specified classes of proceedings (such as in relation to recovery order proceedings), then it would be a court conferred with jurisdiction under that subdivision in relation to those proceedings.

73. The Attorney General’s submissions also noted that the operation of s 9 of the NSW Cross-vesting Act relies on jurisdiction being conferred on this Court by a provision of the Cth Cross-vesting Act, as it provides that the Supreme Court may exercise jurisdiction (whether original or appellate) conferred on that Court by a provision of that Act or of a law of the Commonwealth or a State relating to cross-vesting of jurisdiction and may hear and determine a proceeding transferred to that Court under such a provision.

74. Since s 4 of the Cth Cross-vesting Act no longer relevantly confers jurisdiction on this Court, s 9 of the NSW Cross-vesting Act is ineffective to authorise this Court to exercise jurisdiction over, and hear and determine, an application for recovery orders.

75. For these reasons, I have concluded that this Court does not have cross-vested jurisdiction under s 4(1) of the Cth Cross-vesting Act to make recovery orders under the FL Act in relation to Neil.

Supreme Court’s power and jurisdiction under FL Act, s 46(3A)

76. Section 46 of the FL Act relevantly provides:

46 Transfer of proceedings from court of summary jurisdiction in certain cases

…

(3A)     If proceedings instituted under this Act are pending in a court of summary jurisdiction, each of the following Courts:   

(a)     the Federal Circuit and Family Court of Australia (Division 2);   

(b)     a Family Court of a State;   

(c)     the Supreme Court of a State or Territory;

may, on the application of a party or of its own motion, order that the proceedings be removed to that Court.            

(4)     Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court.

Power to remove proceedings to this Court

77. By its express terms, s 46(3A) confers power and jurisdiction on this Court – being a ‘Supreme Court of a State’ mentioned in s 46(3A)(c) – to order the removal of proceedings instituted under the FL Act, which at the time the order for removal is made, is pending in a ‘court of summary jurisdiction’. The use of the word ‘may’, indicates that the power of this Court to order removal is discretionary.

78. I was not persuaded by Mr Levy’s submission that s 46(3A) only applies where the court of summary jurisdiction is exercising jurisdiction in a matrimonial cause or de facto financial cause. This argument is based on the contention that s 46(3A) is found is Pt V of the FL Act, which was said to deal with matrimonial causes or de facto financial causes.

79. Section 46 is found in Div 3 of Pt V of the FL Act, with Pt V headed ‘Jurisdiction of Courts’. Division 1 of Pt V is concerned with jurisdiction and matrimonial causes, Div 2 of Pt V is concerned with jurisdiction in de facto financial causes, Div 2A of Pt V is concerned with jurisdiction in matters arising under Pt VIIIC and Div 3 of Pt V is headed ‘Other Provisions’.

80. The scheme of the FL Act is that except where expressly stated, the provisions of Div 3 of Pt V of the FL Act apply generally to proceedings through the Act. For example, s 42 states the law to be applied in relation to the exercise of any jurisdiction under the FL Act and s 43 identifies principles that courts exercising jurisdiction under the FL Act must have regard to. I accepted the submissions of the Plaintiffs and the Attorney General that, on its terms, s 46(3A) is a general provision that applies whenever any proceedings instituted under the FL Act are pending in a court of summary jurisdiction.

81. As the Attorney General’s submissions noted, s 46(3A) of the FL Act was inserted into that Act with effect from 1 July 1988, the date on which the Cth Cross-vesting Act commenced. At that time, it formed part of Pt V of the FL Act, which was then entitled ‘Jurisdiction in matrimonial causes’, and s 46 bore the same title it bears now, ‘Transfer of proceedings from court of summary jurisdiction in certain cases’. The title of the section reflected the fact that, prior to the introduction of subs 3A, s 46 dealt with custody and property matters. In its original form, as now, subs (3A) was not limited in terms to particular kinds of proceedings under the Act but authorised the removal of ‘proceedings instituted under this Act’. The Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Bill 1987 (Cth) initially authorised removal only to the Family Court. By the time it was granted royal assent, the Bill authorised removal to all State and Territory Supreme Courts.

82. At the time of the commencement of s 46(3A) of the FL Act, courts of summary jurisdiction of each State were invested with federal jurisdiction in relation to matters arising under Pt VII (which then, as now, dealt with children) by s 63 as then in force. Section 63 appeared in Pt VII. The words of subs (3A) were thus capable of authorising the removal of proceedings instituted in a court of summary jurisdiction that arose under that part of the FL Act dealing with children.

83. The former Pt VII was repealed and replaced by the current Pt VII in its current form by the Family Law Reform Act 1995 (Cth). These reforms introduced recovery orders. They also inserted Div 12, titled ‘Proceedings and jurisdiction’, into Pt VII, which included s 69J (although it has since been amended). The new Pt VII commenced on 11 June 1996. At this time, s 46 still appeared in Pt V, which was still entitled ‘Jurisdiction in matrimonial causes’.

84. From 1 March 2009, upon the coming into effect of relevant amendments made by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Pt V of the FL Act was renamed ‘Jurisdiction of courts’. The Part was divided into three divisions: Div 1, dealing with jurisdiction in matrimonial causes; Div 2, dealing with jurisdiction in de facto financial causes; and Div 3, entitled ‘Other provisions’. At that time, s 46 appeared in Div 3.

85. The Explanatory Memorandum regarding the 2009 amendments records that the change to the title of the Part was made ‘to reflect the expanded operation of Part V under these amendments’ and that ‘Part V will now deal with jurisdiction conferred on courts in both matrimonial and de facto financial causes’. Nonetheless, the extrinsic material does not, in my view, override the ordinary and plain meaning of the statutory text of s 46(3A) of the FL Act which does not provide that its operation is limited to matrimonial or de facto financial causes. While other subsections of s 46 are limited in their terms to particular kinds of proceedings under the FL Act, s 46(3A) is not.

86. As the Attorney General submits, the broader scope for application of s 46(3A) compared to that of the other substantive provisions of the section (ss 46(1) and 46(2A)) may be referable to the powers and obligations conferred on the court and the parties by each substantive subsection. Subsections 46(1) and 46(2A), which relate to proceedings in relation to property and divorce, respectively, require a court to transfer proceedings except in limited circumstances. Subsection 46(3A), on the other hand, merely permits a superior court to remove any proceeding under the FL Act to that court.

87. I am also unpersuaded by Mr Levy’s submission that Div 12 of Pt VII of the FL Act provides an exhaustive regime for the conferral of jurisdiction and powers on courts in relation to matters under that Part. Subdivision C of Div 12 of Pt VII is headed ‘Jurisdiction of courts’ and confers jurisdiction on various courts in respect of matters arising under Pt VII of the FL Act. Section 69M (which is contained in Subdiv C) states that the jurisdiction conferred or invested by Div 12 is ‘in addition to any jurisdiction conferred on or invested in the court apart from this Division’. In other words, the conferral of jurisdiction under Div 12 does not exclude or limit jurisdiction conferred by other provisions of the FL Act, including s 46(3A).

88. Nor do I consider there to be any relevant conflict between s 46(3A) and s 69N of the FL Act. Section 46(3A) confers a general discretionary power by which a ‘higher’ court is able to remove proceedings instituted under the FL Act from a ‘lower’ court of summary jurisdiction. In contrast, s 69N concerns parenting order proceedings. Accepting that a parenting order may include a recovery order (see, for example, Hugh v Sawer [2011] FAMCA 48 at [44]-[46]), s 69N operates where parenting order proceedings are instituted in a court of summary jurisdiction, the respondent seeks a different order from that sought in the application, and where the parties do not consent to the proceedings being heard and determined in that court, the court of summary jurisdiction is obliged to transfer the proceedings to a court, which does not include a State Supreme Court. Section 69N does not, in my view, say anything that would limit the operation of s 46(3A), in the context of the application made in this case.

89. I was also unpersuaded that s 46(3A) would be inconsistent with s 69B of the FL Act, as Mr Levy’s submissions contended.

90. Section 69(B)(1) of the FL Act states that:

69B  Certain proceedings to be instituted only under this Part            

(1)     Proceedings that may be instituted under this Part must not, after the commencement of this section, be instituted otherwise than under this Part.

91. As the Plaintiffs submitted, s 69B is not concerned with the jurisdiction of courts in which proceedings under Pt VII may be instituted, but with the parties and procedure applicable in such proceedings, as is clear from the heading to Subdiv B (‘Institution of proceedings and procedure’) and the surrounding provisions, as well as the heading to Subdiv C (‘Jurisdiction of courts’) and the provisions in that subdivision, for example, ss 69GA, 69H and 69J. Sections 69C and 69D in Subdiv B deal with the persons who may institute proceedings under Pt VII and s 69E requires there to be a connection between the relevant child, parent or party with Australia. An application for removal of recovery order proceedings under s 46(3A) by a person with parental responsibility of a child does not, in my view, conflict with any of those requirements.

92. Accordingly, I am satisfied that where a proceeding for a recovery order is pending in a court of summary jurisdiction of NSW, such as a Local Court of NSW to which a Proclamation under subs 69J(3) is not in force, this Court is authorised by s 46(3A) of the FL Act to order that those proceedings be removed to this Court.

Jurisdiction on the Supreme Court under s 46(3A) of the FL Act to hear and determine proceedings for a recovery order

93. The next question is whether s 46(3A) of the FL Act confers on this Court jurisdiction to hear and determine proceedings for a recovery order if a removal order is made.

94. Put another way, is the power of removal under s 46(3A) of the FL Act unavailable unless the removing court (in this case, the Supreme Court of NSW) otherwise has jurisdiction to hear and determine the removed proceedings (in this case, the recovery order proceedings), or does the section which empowers this Court to order removal confer on it (the removing Court) jurisdiction to hear and determine the removed proceedings?

95. The Plaintiffs and the Attorney General submitted that applying well-established principles of statutory construction and having regard to High Court authority (referred to below), the conferral on the Supreme Court of NSW of a power to remove proceedings from a court of summary jurisdiction under s 46(3A) carries with it by implication every power and authority that is reasonably necessary to effectuate the purpose of the power of removal, namely to hear and determine the proceedings which were instituted in the court of summary jurisdiction. They submitted that it follows that upon the making of an order for removal under s 46(3A), this Court has all the jurisdiction which the court of summary jurisdiction had to hear and determine the proceedings for a recovery order. I accepted that submission.

96. In construing s 46(3A), the Court presumes that a provision conferring jurisdiction on or granting powers to a court is to be read as liberally as its terms and context permit: Perry Herzfeld and Thomas Prince, Interpretation (2^nd ed, 2020, Thomson Reuters) at [9.700] (Interpretation). This proposition is based on the principle from Owners of ‘Ship Shin Kobe Maru’ v Empire Shipping CoInc (1994) 181 CLR 404; [1994] HCA 54 at 421 (approved in Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 at [17]; Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; [2006] HCA 22 at [33]; Wigmans v AMP Ltd (2021) 270 CLR 623; [2021] HCA 7 at [111]) that:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

97. That proposition supports a broad construction of s 46(3A), without imposing limits on the power provided by the express language of the section which provides this Court with power and jurisdiction to remove proceedings instituted under the FL Act that are pending in a court of summary jurisdiction to this Court.

98. It is also a principle of statutory construction that every grant of power to a body, particularly a court, carries with it every power and authority that is reasonably necessary for the exercise of the power: Interpretation at [9.710]; Grassby v the Queen (1989) 168 CLR 1; [1989] HCA 45 at 16 (Dawson J; Mason CJ, Brennan, Deane and Toohey JJ agreeing); Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [50] (Gaudron, Gummow and Callinan JJ).

99. That principle was referred to by Kiefel CJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [40] (see also at [52] (Gageler J), [118] (Keane, Nettle and Gordon JJ)), in the following terms (citations omitted):

Every court possesses jurisdiction arising by implication, upon the principle that a grant of power carries with it everything necessary for its exercise. The term ‘necessary’ in connection with the implied power is to be understood as identifying a power to make orders which are reasonably required or legally necessary to the accomplishment of what is specifically provided to be done by the statute.

100. The purpose of the removal power in s 46(3A) is to permit the removal of ‘lower’ court proceedings instituted under the FL Act to this ‘higher’ court where there is good reason to do so, having regard to the matters referred to in r 9.07(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (FCFCA Rules) (described further at [127] below). That purpose would be defeated and the power to make a removal order under s 46(3A) would be rendered nugatory if this Court did not have jurisdiction to hear and determine the removed proceedings by virtue of that section.

101. The approaches of the High Court in respect of its removal power under what is now s 40 of the Judiciary Act 1903 (Cth) (Judiciary Act) and its remittal power to lower courts under s 44(1) of that Act are also instructive and assist in interpreting s 46(3A) and determining the question of whether the section confers jurisdiction on the Supreme Court of NSW to hear and determine the removed proceedings.

100. In O’Neill v O’Connell (1946) 72 CLR 101 (O’Neill), the High Court considered whether proceedings instituted in the Supreme Court of Victoria, that concerned determination of questions arising under a will, should be removed to the High Court, in circumstances where an issue had arisen in the case as to the constitutional validity of a State regulation. Section 40A of the Judiciary Act, as then in force, provided for automatic removal to the High Court of any cause which raised a question as to the power inter se between the State and the Commonwealth. The remainder of the will proceedings was not a matter in respect of which the High Court had original jurisdiction.

101. The High Court held (Starke, Dixon and Williams JJ) that the whole cause was transmitted under s 40A of the Judiciary Act to the High Court, which may decide it on any ground whether of State or of Federal law if the rights of the parties are thereby determined. At 115 and 116, Starke J stated (footnotes omitted):

There are some passages in R. v. Maryborough Licensing Court; Ex parte Webster & Co. Ltd. which suggest that only the inter se question is removed into this Court; that the jurisdiction of this Court is confined to the determination of that question because of the limited nature of the original jurisdiction of this Court: See Constitution, ss. 75 and 76, and Judiciary Act, s. 30. It is, however, the cause that is removed by s. 40A. “Once the cause is removed,” this Court “is clothed with full authority essential for its complete adjudication: it is the cause which is removed, and not merely the question involving the interpretation of the Constitution’: Cf. Ex parte Walsh and Johnson; In re Yates.

104. Later, Dixon J stated at 125:

But once the “cause” is lawfully removed here, then the determination of the cause lies within the jurisdiction of this Court, which, unless it exercises the power conferred by s. 42 or exercises its discretion to remit the whole or any part of it, may dispose of the matters in controversy and give what judgment and make what order appears right upon the facts and the law.

105. Johnstone v Commonwealth (1979) 143 CLR 398 (Johnstone) was a case involving remitter. The plaintiff, who resided in NSW, commenced an action in the High Court against the Commonwealth claiming damages for negligence causing personal injury. The alleged negligence occurred in South Australia and the plaintiff applied to the High Court for remitter to the Supreme Court of NSW under s 44 of the Judiciary Act. The High Court noted that the Supreme Court of NSW had jurisdiction with respect to the ‘subject-matter’ of the proceedings, namely, some actions in tort brought by an individual against the Commonwealth (at 401). The question that arose was whether the remitter power under s 44 invested jurisdiction in the Supreme Court of NSW where none before existed, because the alleged negligence arose it a different state. The majority of the High Court (Gibbs, Murphy, and Aickin JJ, Stephen and Jacobs JJ in dissent) held that it did.

106. At 401-402, Gibbs J referred to the principle that no court has jurisdiction to entertain a suit against the Commonwealth unless that jurisdiction is conferred by it on the Constitution or by statute. His Honour rejected the Commonwealth’s argument that s 44(1) of the Judiciary Act, by its remitter power, did not confer jurisdiction on the High Court. Gibbs J stated:

The question therefore is simply one of construction: does s. 44 enable this Court, by a remitter order, to invest the court to which a matter is remitted with a jurisdiction which it did not previously possess, or can a remitter be made only to a court which is already invested with jurisdiction?

There is no reason to give s. 44 a narrow, restrictive construction. If the Parliament had intended that remitter should be made only to a court already invested with jurisdiction it would have been very easy to say so. Strong reasons of convenience may in a particular case demand that a matter pending in this Court should be remitted to a Supreme Court other than that in which the cause of action arose… It would not serve any useful purpose to confine the words of s. 44 in the manner suggested and to fetter a power of remitter which was obviously intended to be large and general.

107. Similarly, Aickin J opined (at 408-409):

… the effect of s 44 is to confer federal jurisdiction on State Courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s 75 of the Constitution.

…

This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s 44 does is not to authorize this Court to confer federal jurisdiction on State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorized to remit the proceedings to State courts and does in fact so remit.

108. In MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 (MZXOT), the High Court referred to Dixon J’s statement in O’Neill (at [104] above) in the context of remittal under s 44 of the Judiciary Act, and described the reasons of Aickin J in Johnstone (as extracted at [107] above) as ‘the statement of the doctrine’ (at [48]-[49]).

109. The Court in MZXOT (at [188]) also noted the statement by Gummow J in Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 633-4 that exercising a power of remitter is a ‘step in [a] sequence’ involving the investment or conferral of original jurisdiction on a federal or a State court by operation of s 44(3) of the Judiciary Act (247) and that his Honour said at 633:

Section 44(3) … operates … as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction.

110. These High Court cases reveal that the ‘receiving’ court does not need to already have jurisdiction to hear and determine the issues in the proceedings for a statutory removal or remitter power to be exercised. Further, upon the lawful exercise of the power, the ‘receiving’ court may be invested by statute with jurisdiction to hear and determine the ‘received’ proceedings, notwithstanding that the statute does not expressly and directly confer jurisdiction on the ‘receiving’ court in respect of the ‘received’ proceedings.

111. Prior to the hearing, the Court referred the parties to the decision of Brereton J (as his Honour then was) in Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 (2010) 77 NSWLR 601; [2010] NSWSC 656 (Rinbac).

112. Rinbac concerned an application pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (CP Act) to transfer from the District Court to the Supreme Court of NSW an appeal under s 200 of the Strata Schemes Management Act 1996 (NSW) (Strata Schemes Act). Under s 140 of the CP Act, this Court has the power to transfer proceedings from the District or Local Court. In an ex tempore judgment, his Honour held that s 140 of the CP Act was not available for transfer and concluded that this Court did not have jurisdiction to entertain the removed appeal, and referred to three reasons for coming to that conclusion.

113. First (at [11]), his Honour considered that there was nothing in or about s 140 of the CP Act which conferred on a transferee court additional jurisdiction that it does not otherwise have. His Honour distinguished s 140 from, for example, ss 149 and s 149E of the CP Act, which are sections that refer to conferral on the lower/transferee court of all the relevant jurisdiction of the higher/transferor court, and stated that there was nothing in connection with the transfers under s 140 from a lower court to a higher court that gave the higher court jurisdiction that it did not otherwise have.

114. Second (at [12]), his Honour considered that the jurisdiction to entertain an appeal under s 200 of the Strata Schemes Act was given to the District Court (and only to the District Court) as a statutory right of appeal defined by the terms of the statute that create it.

115. Third (at [13]), his Honour reasoned that the appeal given by s 200 of the Strata Schemes Act lay ‘in the same cases and in the same way as it would lie under Pt V of the Crimes (Local Courts Appeal and Review) Act [2001 (NSW)]’, which is a criminal proceeding within s 3 of the CP Act and is not subject to s 140 of the CP Act.

116. Rinbac has been referred in other first instances decisions (see, for example, BOC v MDL [2019] NSWSC 278 at [19] and New South Wales v Plum [2015] NSWSC 1566 at [19]), although primarily on the question of whether there is good reason to permit the transfer under s 140 of the CP Act. In Singh v the Owners-Strata Plan 11723 [2012] NSWSC 519 (Singh), Adamson J referred to Rinbac in relation to a case in which her Honour held that this Court had no power to transfer the plaintiff’s appeal in the District Court as it lacked jurisdiction to hear the appeal.

117. It is not necessary for me to decide the correctness of the reasoning in Rinbac in relation to s 140 of the CP Act, referred to at [113] above. I accept the submissions of the Plaintiffs and the Attorney General that there is no relevant analogy between this case and the circumstances in Rinbac (or in Singh), given it concerned a statutory appeal and involved criminal appeal proceedings.

118. Further, s 46(3A) of the FL Act (not s 140 of the CP Act) is the authorising section in this case and in Rinbac there was no discussion of the principles and the High Court authorities to which I was taken during the course of this hearing (as outlined at [102]-[109] above). There are also no provisions in the FL Act akin to ss 149 and 149E of the CP Act that are applicable to recovery order proceedings, noting also that it was submitted by the Plaintiffs and the Attorney General that provisions such as ss 149 and 149E are for the avoidance of doubt and do not do anything other than confirm what would already be the position, namely, that the power to remove proceedings to another court invests that other court with jurisdiction to hear and determine the removed proceedings unless there is some specific provision that says otherwise.

119. In my view, consistent with the principles and High Court cases to which I have referred, the conferral on the State Supreme courts of the power to remove proceedings instituted under the FL Act that are pending in a court of summary jurisdiction under s 46(3A) carries with it by implication the power and authority to effectuate the purpose of the removal power to hear and determine the removed proceedings. As the High Court cases to which I have referred make clear, it is Parliament via statute, in this case s 46(3A) of the FL Act, that confers jurisdiction on the State Supreme courts to hear and determine the matter that is removed from the court of summary jurisdiction, in this case, a Local Court of NSW (that is not the subject of a relevant proclamation in force under s 69J(3) of the FL Act), and not the court that makes the removal order.

120. Relevantly, s 46(3A) does not provide that the pending proceedings in the court of summary jurisdiction may only be removed to ‘that Court’ if ‘that Court’ has jurisdiction in relation to matters arising under the FL Act. If Parliament had intended the removal power in s 46(3A) to be invoked only by and to a court invested with jurisdiction in relation to matters arising under Pt VII, it would have been easy to draft it in that way: Johnstone at 402.

121. Of course, the statutory context is also relevant. However, in this instance, there are no provisions in the FL Act that, in my view, have the consequence of defeating the implication that arises from the principles and the statements from the High Court cases referred to above. The implication being that the Supreme Court has every power and authority, including jurisdiction conferred on it, to effectuate the purpose of the power of removal under s 46(3A), namely to hear and determine the proceedings instituted in the court of summary jurisdiction seeking recovery orders. In my view, s 46(3A) should be interpreted broadly, as there would be no useful purpose served by confining that section and fettering the general power of removal to all State Supreme Courts.

122. Reference was made during the course of argument to ss 69L and 69M of the FL Act.

123. As to s 69L (which provides that where proceedings in relation to a matter arising under a law of the Commonwealth are transferred under the FL Act to a court that has jurisdiction conferred or invested in it by Div 12, the jurisdiction so conferred or invested in the court includes jurisdiction in relation to that matter), consistent with the submission referred to at [118] above, the Plaintiffs contended that it is an ‘otiose provision’ which reflects an ‘old view’ of conferring jurisdiction that ‘happens anyway’.

124. It was also submitted, and I accept, that s 69M does not detract from the Plaintiffs’ submissions as that section provides that the jurisdiction conferred in a court by Div 12 is in addition to any jurisdiction otherwise conferred or invested in the court, thus making clear that the jurisdiction conferred by Div 12 of Pt VII (which includes ss 69H and 69J) is not exclusive.

125. Finally, I also accepted the Plaintiffs’ submission that s 46(4) of the FL Act does not affect the reasoning accepted by the Court, as set out above. That subsection is not concerned with the higher court’s jurisdiction but is designed to regulate the course of proceedings in the ‘higher’ court: Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315; [1986] HCA 22 at 325.

126. For these reasons, I have concluded that this Court has power under s 46(3A) to order the removal of recovery order proceedings instituted by the Plaintiffs under the FL Act that are pending in a Local Court of NSW and thereafter, once the proceedings are removed, this Court has jurisdiction to hear and determine the recovery order proceedings.

Should this Court make a removal and recovery order in this case?

127. Rule 9.07(4) of the FCFCA Rules (which applies by reason of ss 4, 42 and 123 of the FL Act [2] ) provides:

     2. Section 42 of the FL Act states that jurisdiction under the FL Act must be exercised in accordance with ‘applicable Rules of Court’. Section 4 of the FL Act defines the phrase ‘applicable Rules of Court’ to means the ‘standard Rules of Court’, which in turn is defined to mean the Rules of Court made under the FL Act. Section 123 of the FL Act authorises the Chief Justice of the Division 1 Court to make relevant rules of court to be followed in any court exercising jurisdiction under the FL Act. The relevant rules are the Family Law (State and Territory Courts) Rules 2021 (Cth). The effect of r 2.01 of those rules is to apply the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

(4) In deciding whether to remove a proceeding from a court under subsection 46(3A) of the Family Law Act, the court may consider the following:

(a)     the public interest;   

(b)    the financial value of the claim;   

(c)     the complexity of the facts, legal issues, remedies and procedures involved;   

(d)     whether the proceeding, if removed, is likely to be dealt with:   

(i)     at less cost to the parties; or   

(ii)     at more convenience to the parties; or   

(iii)     earlier;   

(e)     the availability of a judicial officer specialising in the type of proceeding to which the application relates;   

(f)     the availability of particular procedures appropriate to the proceeding;   

(g)     the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;   

(h)    the wishes of the parties.

128. The Plaintiffs submitted, and I accepted, that in the circumstances of this case, where the Court is familiar with Neil’s circumstances and has made previous orders in relation to him, it is appropriate for the Court to make an order pursuant to s 46(3A) of the FL Act removing the recovery order proceedings pending in the Local Court to this Court.

129. In particular, I was satisfied that there was public interest in removing the Local Court Proceedings to this Court as the recovery orders were inextricably linked to the secure accommodation orders made by this Court in relation to Neil; it would be more convenient to the parties if the Local Court Proceedings were removed to this Court given its knowledge and background of the issues relating to Neil; the recovery order proceedings were likely to be able to be dealt with earlier if they were removed to this Court (noting that it took some weeks for the Plaintiffs to file their Local Court initiating process); this Court has judicial officers available that have experience in making recovery orders under the FL Act (albeit relying on this Court’s cross-vested jurisdiction); and making a removal order was consistent with the wishes of the relevant parties.

130. I was also satisfied that once a removal order in relation to the Local Court Proceedings was made under s 46(3A) of the FL Act, it was in Neil’s best interests to make the recovery order as sought at prayer 2 of the Plaintiffs’ Motion.

131. As noted at [16] above, Neil has a history of absconding on a regular basis from the Sherwood House program. On one occasion, he was missing for 5 days during which time he was without his medications, shoes and his own clothing, he needed money for food and had spent time at another out-of-home care placement of a former Sherwood House resident. On his return, he was reported to have been withdrawn and disengaged, and had bruising and scratches all over his body.

132. Neil’s absconding behaviour, mental health diagnoses, criminal history and his tendency to engage on risky behaviour while away from the Program puts him and others at risk. It also undermines the safety, support and intervention programs that the secure accommodation orders provide Neil, which are all designed to build his capacity to mitigate against future risks and work towards his graduation from Sherwood House.

133. Mr Levy agreed that the desired end point was to have in place some order so that Neil can be taken back to his placement as and when necessary. During submissions, he also noted that the absence of a standing recovery order had been a factor in determining the extent of Neil’s community outings and engagement over the recent period, although it had not prevented outings entirely.

134. Based on these matters, and particularly given Neil’s history, I was persuaded that it was in Neil’s best interests to make a standing recovery order under s 67U of the FL Act, that would extend to enabling members of the NSW Police Force to search and enter vehicles, premises and other places.

135. In coming to this view, I was not invited by the Plaintiffs or the Attorney General to reconsider the scope of the parens patriae jurisdiction to make recovery orders and have not done so. As observed at the hearing, the only application before the Court was for a removal order under s 46(3A) of the FL Act and a recovery order under ss 67T and 67U of that Act.

136. For these reasons, at the end of the hearing on 8 December 2020, I was satisfied that the Court had power to make a removal order in relation to the Local Court Proceedings and jurisdiction to make a recovery order in the terms sought by the Plaintiffs’ Motion, and that it was in Neil’s best interests to make them. Accordingly, on 8 December 2022, I made orders to that effect at the end of the hearing. I was unable to provide detailed reasons due to another matter in the Duty List that day. The parties were content for my reasons to be provided later.

137. The next morning, the Crown Solicitor’s Office (CSO) (with the consent of Mr Levy and the Attorney General) sent an email to my chambers indicating that late on 8 December 2022, they were informed by the Deputy Registrar at the Downing Centre Local Court of the existence of the Summary Courts Jurisdiction (Matrimonial Causes and Children) Proclamation 2007 (2007 Proclamation) [3] made under ss 39(7) and 69J(3) of the FL Act. The 2007 Proclamation relevantly provides that proceedings in relation to matters arising under Pt VII of the FL Act may not be instituted in four courts of summary jurisdiction in NSW, including the Downing Centre Local Court. The Plaintiffs were not aware of the existence of the Proclamation until 9 December 2022.

     3. The 2007 Proclamation was made to prevent family law proceedings that would have previously been dealt with in the St James Court (which was relocated to the Children’s Court complex in Parramatta) from being lodged in or transferred to nearby Local Courts that lack specialist family law expertise: Explanatory Statement to the Summary Courts Jurisdiction (Matrimonial Causes and Children) Proclamation 2007 (Issued by the Attorney-General).

128. The CSO’s email acknowledged that due to the 2007 Proclamation, the Downing Centre Local Court Proceedings were irregularly instituted as it lacked jurisdiction to hear the recovery order proceeding, and consequently this Court could not make the removal order under s 46(3A) of the FL Act from the Downing Centre Local Court nor the recovery order. They requested that the orders made on 8 December 2022 be vacated, noting that the Plaintiffs were taking urgent steps to file their application for a recovery order in a Local Court registry other than one of the four named in the 2007 Proclamation. Accordingly, on 9 December 2022, I set aside the orders made on 8 December pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15.

129. In the early afternoon of 9 December 2022, my chambers received an email from the CSO (with the consent of Mr Levy and the Attorney General) confirming that the Plaintiffs had instituted proceedings in the Waverley Local Court of NSW seeking a recovery order in relation to Neil pursuant to ss 67T and 67U of the FL Act which had been allocated proceedings number 2022/371790. A copy of the letter from the CSO to the Local Court and the Initiating Application filed in the Waverley Local Court was attached to the email (which I have marked as Exhibit C). The Waverley Local Court is not one of the four courts referred to in the 2007 Proclamation.

130. The parties requested that I make removal and recovery orders referring to the Waverley Local Court, which I did in chambers that day.

Orders

141. For these reasons, on 9 December 2022, I made the following orders:

1. Pursuant to section s 46(3A)(c) of the Family Law Act 1975 (Cth), order that the Local Court proceedings concerning [Neil], which were instituted by the Secretary on 9 December 2022 in the Waverley Local Court of New South Wales, be removed from the Local Court of NSW to this Court and they be consolidated with proceedings number 2021/00098482.

2. Pursuant to section 67T and section 67U of the Family Law Act 1975 (Cth), until 1 November 2023 or until further order of the Court, all officers of the NSW Police Force are authorised and directed to locate and recover the young person [Neil], born [XXX] (known in these proceedings as “Neil”), 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 purposes of finding [Neil], and delivering him pursuant to section 67Q(a)(v) of the Family Law Act 1975 (Cth) to the Secretary, Department of Communities and Justice, or the Secretary’s delegate, on any day that [Neil] is located and recovered.

3. Orders 1 and 2 are to be entered forthwith.

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Endnotes

Amendments

14 December 2022 - 'jurisdiction' added to [93]

Decision last updated: 14 December 2022