Re Neil (No 5) [2022] NSWSC 1704

Supreme Court New South Wales

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 Act 1975 (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 Co Inc (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)