Re Neil (No 5) [2022] NSWSC 1704

Re Neil (No 5) [2022] NSWSC 1704

The Supreme Court of NSW does not retain cross-vested jurisdiction to make recovery orders under the Family Law Act following the 1 September 2021 legislative changes. However, under s 46(3A) of the Family Law Act 1975 (Cth), where Local Court proceedings (instituted under the Act) are pending, the Supreme Court may order their removal to itself and, by implication, is invested with the authority to hear and determine them. Such removal and the making of recovery orders is justified in this case in light of Neil’s absconding history, the risks to his welfare, and the public interest in managing his secure accommodation, and is in his best interests.

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Procedural Ruling, Family Law—child Recovery / Application to Remove Local Court Proceedings to Supreme Court and for a Recovery Order
Outcome
Application granted; orders made removing Local Court proceedings and consolidating them, and a recovery order granted
Legal Topics
['removal of Proceedings' 'recovery Orders' 'parens Patriae Jurisdiction' 'cross Vesting' 'best Interests of the Child']
['civil Procedure' 'family Law' 'jurisdiction'] ['removal of Proceedings' 'recovery Orders' 'parens Patriae Jurisdiction' 'cross Vesting' 'best Interests of the Child']

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Procedural Posture

Procedural Ruling, Family Law—child Recovery / Application to Remove Local Court Proceedings to Supreme Court and for a Recovery Order

Legal Issues

  1. 1 ['Whether the Supreme Court of NSW retains cross-vested jurisdiction to make recovery orders under the Family Law Act 1975 (Cth) after legislative changes' 'Whether the Supreme Court can order removal of Local Court proceedings and then make recovery orders under the Family Law Act 1975 (Cth)' 'Whether making such orders is in the best interests of the child']

Ratio Decidendi

The Supreme Court of NSW does not retain cross-vested jurisdiction to make recovery orders under the Family Law Act following the 1 September 2021 legislative changes. However, under s 46(3A) of the Family Law Act 1975 (Cth), where Local Court proceedings (instituted under the Act) are pending, the Supreme Court may order their removal to itself and, by implication, is invested with the authority to hear and determine them. Such removal and the making of recovery orders is justified in this case in light of Neil’s absconding history, the risks to his welfare, and the public interest in managing his secure accommodation, and is in his best interests.

Court Disposition

Application granted; orders made removing Local Court proceedings and consolidating them, and a recovery order granted

Orders

  • ['Pursuant to s 46(3A)(c) Family Law Act 1975 (Cth), the Local Court proceedings instituted in Waverley Local Court are removed to this Court and consolidated with proceeding 2021/00098482.' 'Pursuant to ss 67T and 67U Family Law Act 1975 (Cth), until 1 November 2023 or further order, all officers of NSW Police...