Re Emma

On 18 August 2023, I gave leave to the Secretary, Department of Communities and Justice, and the Minister for Families and Communities, as plaintiffs, to commence these proceedings in the Duty List of the Equity Division of this Court.

The application concerned a 16-year-old girl who has been given the pseudonym “Emma” for the purposes of these proceedings.

The application was held in closed Court and orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or disclosure of information that would identify or tend to identify Emma until 19 July 2032, save for certain excluded purposes.

On the application of the plaintiffs, I made what are commonly called secure accommodation orders in respect of Emma, as follows:

The properties referred to in order 10 are the premises at which the Secretary administers what is generally called the “[Secure] House program”, where young persons the subject of secure accommodation orders can be safely and securely accommodated for the purpose of providing to them bespoke care and rehabilitation programs aimed at enabling the young persons to gain the capacity to live satisfactory lives in the community when they cease to be under the parental responsibility of the Minister.

The Court makes orders of this type under its parens patriae jurisdiction, which is an ancient jurisdiction vested in the Court that empowers it to make orders that are necessary for the safety, protection and care of persons who are unable to be protected by any alternative means. I will say more about the parens patriae jurisdiction below.

The orders were made in the absence of Emma. I made the orders immediately, because the evidence that was placed before the Court made it obvious that Emma was in extreme and immediate need of being placed in secure accommodation within the Secure House program.

On 5 February 2012, the Children's Court of New South Wales made final orders allocating parental responsibility for Emma to the Minister until she turns 18 years old. Thus, the Court was asked to make all of the orders that were made by the person who exercises parental responsibility for Emma.

On this occasion, a solicitor independent of the plaintiffs appeared on the application and, with the consent of the plaintiffs, I made an order appointing the solicitor as the independent legal representative (ILR) for Emma. The ILR supported the Court making the orders sought by the plaintiffs. Applications of this type are usually made by the plaintiffs with such a degree of urgency that there has been no time for an arrangement to be made for a potential ILR to appear. In such cases, if the orders are made, they include an order that the plaintiffs arrange for the appointment of an ILR for the young person. The secure accommodation orders are then only made for a short time to enable the ILR to be appointed and to appear on the next occasion in order to make submissions to the Court in the interests of the young person as to whether the secure accommodation orders should be continued, and if so, on what terms.

If the secure accommodation orders are continued, they are customarily returned to the Court every three months or so for reconsideration. If the plaintiffs wish to ask the Court to make orders continuing the secure accommodation orders, the plaintiffs provide to the Court comprehensive evidence of the participation of the young person in the Secure House program since the time the last order was made.

The evidence is always provided to the ILR in advance so that the ILR will be able to act in the interests of the young person at the hearing. Commonly, in my experience, the ILR for the young person speaks to him or her, so that, having proper regard to limitations that sometimes exist on the young person's capacity to act maturely in their own interests, the ILR can inform the Court of the young person's attitude to the continuation of the secure accommodation orders. The orders are usually continued until the therapeutic program in which the young person participates while in secure accommodation has enabled the young person to recover sufficiently to enable them to reside in an alternative placement with less restrictive accommodation arrangements, or they graduate out of the program upon turning 18, when the parental responsibility of the Minister ceases.

It is customary for judges who make the initial secure accommodation orders to retain, where possible, personal judicial responsibility for the supervision of the young person's involvement in the program and the continuation of the secure accommodation orders until the young person transitions out of the program.

As the purpose of these reasons is to deal with a particular issue that arose on the present application, and not to give reasons for why the secure accommodation orders were made, it will be sufficient to provide the following brief explanation of the Court’s parens patriae jurisdiction. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s Case), Mason CJ, Dawson, Toohey and Gaudron JJ relevantly said at 258 (footnotes omitted):

Later in AMS v AIF (1999) 199 CLR 160; [1999] HCA 26, Gaudron J added at 189 (footnotes omitted):

As Sackar J said in this Court in in Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624 at [21]-[23].

The aspect of these decisions that is most relevant for the purposes of these reasons is the description of the parens patriae jurisdiction as being unlimited, though required to be exercised in a principled way and only in exceptional cases and with considerable caution.

In addition to the secure accommodation orders that are set out above, in this case I made the following order on the application of the plaintiffs:

That was the only order sought in the plaintiffs’ notice of motion directed at enlisting the assistance of officers of the NSW Police Force in finding and transporting Emma to Secure House. Counsel for the plaintiffs disclosed that, in another recent application for secure accommodation orders made by the plaintiffs in relation to a young person given the pseudonym “Demi”, the plaintiffs had included an alternative form of order in their notice of motion to the equivalent of order 13 made by me, which was in the following terms:

The purpose of these reasons is to explain why I made order 13, and, in particular, to justify my view that the parens patriae jurisdiction is sufficiently extensive to support the making of order 13 instead of the alternative orders set out immediately above, the latter of which have been supported by authority that will be considered below.

I should record that I decided that the Court had jurisdiction to make order 13, and that I should do so, with the benefit of written submissions made by counsel briefed to appear for the plaintiffs. The following reasons endorse the validity of those submissions.

I was informed by those submissions that this Court has made an equivalent order to order 13 on the application by the plaintiffs for secure accommodation orders in the matter involving “Demi”. The order was made by Hammerschlag CJ in Eq in the Duty List. I was informed that, at the time he made the order, his Honour did not have the benefit of the written submissions that were provided to me on this application. I was also informed that, at a later hearing in the matter involving Demi at which Lindsay J made orders extending the secure accommodation orders, his Honour made an observation in regard to the Chief Judge’s reliance solely on the parens patriae jurisdiction: “…but I note with some degree of satisfaction that, given the choice, he made his orders by reference to the inherent protective jurisdiction, rather than any legislation, and I would encourage the Crown Solicitor’s Office to accept that the jurisdiction of the Court does extend to making those orders.” Given the eminence of the Chief Judge and the depth of Lindsay J’s understanding of the protective jurisdiction of this Court, I am fortified in the reasoning I will now express, notwithstanding that neither of these judges was given the opportunity to express a considered view on the issue.

It will be appropriate to begin by setting out the aspects of the evidence that were material to my decision to make the order enlisting the aid of the officers of the NSW Police Force (which I will call for convenience a “recovery order”, although that term has a technical meaning when equivalent orders are made under the Family Law Act 1975 (Cth)). That evidence may prompt the thought that the plaintiffs could well have made the application earlier than they did. The explanation is that the Secure House program is only able to accommodate 16 young persons, and there was no vacancy until August of this year.

I will omit certain detail from my description of the evidence, such as times and places, to reduce the possibility that Emma will be able to be identified by persons who are familiar with her history.

Emma was assumed into care at a very young age because of numerous risk of harm reports outlining her exposure to illicit drugs while in utero, family violence, and her mother's self-harming and suicidal ideation. For many years, Emma lived in various out-of-home care placements, including a long-term placement that ended due to the carers' inability to manage Emma's behaviour. At the time the Court made the secure accommodation orders, Emma was living in an Intensive Therapeutic Care (ITC) placement with a funded agency. ITC is a service system that helps children who are recovering from the most severe forms of trauma, neglect, abuse or adversity. ITC is for children over 12 years of age with complex needs, who are either unable to be supported in foster care or require specialised and intensive supports to maintain stability in the care arrangements.

During this year up to the date of the plaintiffs’ application, Emma's funded agency recorded 69 incidents, including (a) absconding from her placement; (b) use of illicit substances (including cannabis, gamma hydroxybutyrate (GHB), crack cocaine, heroin, methamphetamine, dimethyltryptamine (DMT) and use of alcohol; (c) shoplifting; (d) concerns that Emma may have been subject to sexual exploitation and abusive relationships with a number of males; and (e) behavioural concerns, including aggression and anxiety.

During this period, Emma absconded from her placement on at least 20 occasions. Emma often presented at her placement as heavily drug-affected and she has disclosed to staff that she is a regular user of ice and heroin.

The evidence detailed 10 incidents of risk of significant harm reports being made in respect of Emma during this period. These reports included multiple examples of Emma being seen in cars driven by significantly older men, and reports of Emma staying in motels and other accommodation for the purpose of having sex with older men in return for being supplied with drugs. Emma has been seen on a number of occasions with track marks on her arms and bruising and blue feet and hands. On one recent occasion, it was reported that Emma was hitchhiking at night in the rain and that her 40-year-old boyfriend was grooming her, and supplying her ice, and she appeared drug-affected and had lost weight and had a look of poor general health.

Emma has not had a mental health assessment as she refuses to engage with relevant services. She currently has been prescribed psychotropic medication to assist with self-regulation, medication for insomnia, and to reduce nausea and vomiting. Emma continually refuses to take her medications.

Emma's funded agency has been advised by her paediatrician that Emma is "at extremely high risk of ongoing harm as well as a risk of death by either assault or misadventure due to her high risk behaviours."

The Court received evidence that Emma had most recently returned to her placement on 16 August 2023. Staff did not believe that she would stay long. It was reported that Emma returned to her placement every five days, as she believed that she would lose her placement if she did not return regularly.

The Court was informed that Emma had not been told about the application, as her care team was concerned that she would go into hiding.

The plaintiffs' proposal was that, if secure accommodation orders were made, Emma would be moved to Secure House on 21 August 2023, or as soon as police were able to locate and recover her. It was anticipated that police assistance would be required to safely transport Emma to Secure House. A plan had been discussed with officers of the NSW Police Force for Emma's safe transport and transition to Secure House, which involved a plane being chartered to transport Emma, her caseworker and two police officers from an airport close to her placement to an airport in Sydney where they would be met by local police.

It was my opinion at the time that I made the secure accommodation orders and the recovery order to the officers of the NSW Police Force to assist, if necessary, in finding Emma, and to escort her to Secure House, that the facts that I have outlined above spoke for themselves, and required an immediate intervention by this Court. The only issue was whether the Court's parens patriae jurisdiction was sufficiently extensive so as to enable the Court to make the recovery order directly, or whether it was necessary for the Court to take the alternative course of waiting for the plaintiffs to commence proceedings in the Local Court and then removing those proceedings to this Court under s 46(3A)(c) of the Family Law Act.

In making the direct recovery order, I accepted the submission made on behalf of the plaintiffs that the alternative process for seeking recovery orders involving the institution of proceedings in the Local Court, and then the removal of those proceedings to this Court for determination, was unsuitable in urgent circumstances such as the current proceedings. The making by the plaintiffs of an application to the Local Court would have required the preparation of supporting documentation and the taking of additional administrative steps that would delay the hearing of the application in this Court. The Local Court process would be reliant on the Local Court Registry having capacity to receive the application, understand the action required, and to record the filing of the relevant application in a timely manner without any additional administrative delays. On the other hand, the judges who sit in the Duty List in Equity in this Court have experience with the making of secure accommodation and related orders, and there is a Duty Judge available to hear urgent applications for the making of those orders on an urgent basis, around-the-clock, if necessary, every day of the year.

When I made the recovery order relying solely on the parens patriae jurisdiction, I was aware of earlier authorities that have cast doubt on the existence of this power in the Court, even though the parens patriae jurisdiction is said to be unlimited. Further, the existence of these authorities was fully disclosed by the plaintiffs in their submissions.

I will now explain by reference to the earlier authorities why I consider that the parens patriae jurisdiction does extend to empowering the Court to make the recovery order that I made.

It is appropriate to start with a consideration of the judgment of Powell J (as his Honour then was) given in Vaughan v Vaughan (Supreme Court (NSW), Powell J, 27 February 1979, unrep). That was a brief judgment of three pages given without reference to authority. The application was made by a mother against the father in respect of an ex-nuptial child. An order had been made in favour of the father that he have liberal access to the child, but on an access date the father had taken the child into his care and had not returned the child to the mother, and had not communicated with the mother, who did not know of the whereabouts of the father or child.

On 15 December 1978, Needham J had granted the mother leave to issue a writ of habeas corpus directing the father to produce the child to the Court forthwith, but the mother had not been able to ascertain the whereabouts of the father in order to serve the writ on him.

It is perhaps significant to his Honour's reasoning that the mother had sought unsuccessfully to enlist the assistance of the police to find the father and the child. His Honour said: "In particular, it would seem that the normal practice of the police authorities is that unless for some reason a person, such as the Defendant, comes under police notice for some form of offence, they will take no particular steps to assist in service of the Writ or Order".

Powell J held:

His Honour did not elaborate upon his reason for reaching this conclusion.

It is notable that, although Powell J held that he had no jurisdiction to direct the issue of any warrant or to make any order binding the police authorities, he made the following statement in his judgment, so that the mother's solicitors could approach the Commissioner of Police with a formal record of his Honour's views, and thus seek whatever assistance the Commissioner may be able to make available to her. That view was:

This decision was significant to the judgment of Brereton J (as his Honour then was) in Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122. That was a case that concerned whether the Court should punish the parents of a newborn child for contempt for failing to present the child at a hospital in compliance with an order of the Court that they do so, in order to enable the hospital to administer a Hepatitis B vaccine to the child. Brereton J recorded at [5] that, on 22 August 2008, the Director-General approached him as Duty Judge with a notice of motion “seeking orders that the parents present Jules to the hospital forthwith; that all officers of the New South Wales Police Force be authorised to stop and search vehicles and enter and search premises for the purpose of finding Jules, to take custody of him and present him to the Director-General; and authorising the hospital to administer the Hepatitis B vaccine”.

In relation to the issue that is relevant to these reasons, his Honour said:

Brereton J considered the issues involved in the Court exercising its parens patriae jurisdiction for the purpose of ensuring that the child's health was protected by the administration of the Hepatitis B vaccine, and then added:

It will be noted that order 13 that I made on 18 August 2023 conformed with the prayer for that relief in the plaintiffs’ summons and used the expression in respect of all officers of the NSW Police Force that they be “authorised and directed to locate and recover” Emma. That expression is conventionally used in the orders that were made in this Court under the cross-vested jurisdiction under the Family Law Act, and is apparently based on the use of the expression “authorising or directing a person or persons” to recover a child in the definition of “recovery order” in s 67Q of the Family Law Act.

Williams J considered this issue in Re Kara [2020] NSWSC 1083. The case involved an application by the present plaintiffs that her Honour described at [2] in the following terms:

Williams J made the orders sought by the plaintiffs, including order 12A, as stated at [4], in the following terms:

The reasons subsequently given by Williams J for the making of the orders included:

The legal situation to this point was that the view had been taken in a number of cases that the Court did not have power under its parens patriae jurisdiction to make an order directed at officers of the NSW Police Force that they cooperate to find and deliver the young person the subject of care orders made in the exercise of the jurisdiction to the parties responsible for executing the Court's orders. However, the then Family Court of Australia had power to make such orders, and the effect of the then current cross-vesting legislation was that it empowered this Court to cross-vest the Family Court's jurisdiction to this Court for the purpose of making the same orders as were within the power of the Family Court.

Significantly, the effect was that the supposed lacuna in the Court's parens patriae jurisdiction would be cured by the simple device of the Court making orders that cross-vested the Family Court's jurisdiction to this Court. As a practical matter, that only required the plaintiffs to add one prayer to their summons and the Court to add one order to its orders. This simple procedure avoided any additional delay being caused in cases where the assistance of the NSW Police Force was necessary to make the particular care orders of the Court in the exercise of its parens patriae jurisdiction effective.

This straightforward stratagem for curing what was apparently a serious practical lacuna in the Court's parens patriae jurisdiction was terminated by legislative changes that took effect on 1 September 2021, and had the effect that this Court could not continue to exercise cross-vested jurisdiction under the Family Law Act to make recovery orders involving officers of the NSW Police Force.

Henry J was required to deal with this issue in Re Neil (No 5) (2022) 110 NSWLR 197; [2022] NSWSC 1704, a decision delivered on 13 December 2022. The circumstances of the case were different to the present case. There, Neil was already the subject of secure accommodation orders made in the exercise of the Court's parens patriae jurisdiction, and was accommodated in the Secure House program. He had exhibited a habit of absconding from the program. The plaintiffs, accordingly, sought orders that would have had the effect of standing orders authorising and directing all officers of the NSW Police Force to locate and recover Neil in order to return him to the Secure House program at any time in the future when he absconded.

As appears from her Honour's judgment, the original secure accommodation orders were made on 28 April 2021 and extended from time to time. At [3], Henry J explained that her reasons dealt with an application made by notice of motion filed by the plaintiffs seeking an order under s 46(3A) of the Family Law Act for this Court to remove Local Court proceedings instituted by the plaintiffs in which they sought recovery orders in relation to Neil under ss 67T and 67U of the Family Law Act to this Court, and for this Court to then hear and determine the recovery order application.

As her Honour explained, this application came before the Court in the following way. Henry J had earlier made recovery orders in respect of Neil on the basis established by Re Jules, but when the plaintiffs applied for an extension of those orders on 23 September 2022, her Honour raised the possibility that the 1 September 2021 legislative changes may have deprived this Court of jurisdiction to make recovery orders based upon the cross-vested powers of what had formally been called the Family Court of Australia.

As the parties were not in a position to properly consider and respond to what Henry J called the jurisdiction issue, her Honour made interlocutory orders, as explained at [11]-[12], as follows:

The observations made by Henry J are, in my opinion, important to the determination of the present issue. As I understand her Honour's judgment, she made the recovery order on a short-term basis to 4 October 2022, solely on the basis of the Court's parens patriae jurisdiction. Her Honour did so on the basis that the orders were simply an expansion of the persons who were authorised under the extant secure accommodation orders to exercise the powers of restraint for Neil to members of the NSW Police Force, when requested by the Secretary, or the Secretary’s nominee, to assist in the return of Neil to the secured premises.

I respectfully agree with her Honour's reasons, which I consider extend in their application to the issue the subject of these reasons. In the present case, the plaintiffs envisage that the NSW Police Force will assist in finding Emma, if necessary, and transport her to Secure House, on a once and for all basis. The recovery order will then be exhausted. Henry J proceeded to determine the plaintiffs’ application for a standing recovery order on a longer term basis by removing proceedings commenced in a local court into this Court, because she was asked to do so by the plaintiffs.

As Henry J explained at [13]:

These orders are equivalent to the alternative recovery orders sought by the plaintiffs in the case involving Demi.

Henry J then explained, at [14]-[17], that the plaintiffs’ notice of motion was listed before her Honour on 16 November 2022. Significantly, the plaintiffs did not move on their motion on that date, 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 Family Law Act. On 23 November 2022, on the application of the plaintiffs, Henry J granted orders in the exercise of the Court’s parens patriae jurisdiction in the same terms as the orders that were set out at [11] of her Honour's judgment, save that they were continued until 8 December 2022. Later on 23 November 2022, the plaintiffs’ originating process seeking recovery orders was accepted for filing in the Downing Centre Local Court. (I interpolate, by way of noting the complications that can arise if the plaintiffs are first required to commence proceedings for recovery orders in a local court, before those proceedings can be removed to this Court, that her Honour explained at [137]-[140] that, after she had made the recovery orders, it was discovered that the Downing Centre Local Court was one of four local courts in this State that had been proclaimed not to have the relevant jurisdiction under the Family Law Act. It was therefore necessary for the plaintiffs to commence new proceedings in the Waverley Local Court, for her Honour to vacate her orders, and then to make new recovery orders in the same terms).

Henry J recorded the issues that were the subject of her reasons for judgment at [18], as follows:

It will be seen from this statement of the issues that it would only be necessary for the Court to decide issue (3), being whether this Court can make an order to the same effect as a recovery order in the exercise of its parens patriae jurisdiction, if the Court had decided in respect of issues (1) and (2) that the Court could not make recovery orders in respect of Neil by means of the removal of the proceedings commenced in the Local Court to this Court and the determination of those proceedings here.

The position adopted by the plaintiffs in the application to Henry J was recorded by her Honour at [23] as follows:

Her honour also recorded at [28] the position of the Attorney General for NSW, who had appeared as amicus curiae, as follows:

Thus, the Attorney General agreed that the interlocutory orders made on 23 November 2022 were authorised under the parens patriae jurisdiction, and did not object to the orders for recovery continuing on that basis, if recovery orders were not made under the Family Law Act. The Attorney General submitted that the continuation of the orders "may not be necessary" as officers of the Police Force were authorised in any event to provide the assistance requested by a parent in respect of a missing child in the ordinary course of providing police services. Relevantly, ss 6(2)(a) and 6(3)(b) of the Police Act 1990 (NSW) provide:

As I understand the balance of her Honour's reasons, she decided that the Court did have the power to remove the Local Court proceedings to this Court, and having made an order for removal, her Honour made orders pursuant to ss 67T and 67U of the Family Law Act, to operate until 1 November 2023 or further order, that all officers of the NSW Police Force were authorised and directed to recover Neil and under s 67Q, that they deliver Neil to the Secretary, or the Secretary's delegate.

In the balance of her judgment, Henry J explained in a comprehensive way why the division of powers between Divisions 1 and 2 of the Federal Circuit and Family Court of Australia and amendments to the s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) that took effect on 1 September 2022 had the effect that jurisdiction to make recovery orders under the Family Law Act could no longer be exercised by this Court as cross-vested jurisdiction of what had formerly been the Family Court of Australia. Her Honour also explained why certain local courts in this State retained jurisdiction to make recovery orders under the Family Law Act and why this Court could exercise the local court’s jurisdiction after making an order for the removal of the proceedings into this Court.

Consequently, as the issues that her Honour was required to decide were framed, it was not necessary for her Honour to decide whether the Court had an alternative power simply to make the extended recovery orders under the Court's parens patriae jurisdiction, and she did not do so.

On the present application, the plaintiffs asked the Court to make the order requesting and directing all members of the NSW Police Force to recover Emma and to deliver her to the delegate of the Secretary immediately on the basis of the parens patriae jurisdiction. That was evidently done in order to avoid the risk of additional delay that would have ensued if the plaintiffs were first required to prepare and file an application in a local court that had jurisdiction to make a recovery order, so that those proceedings could be removed to this Court on the same basis as occurred in Re Neil (No 5).

At the time I heard the plaintiffs’ urgent application, I considered it to be self-evident on the facts outlined above that the Court would not be justified in imposing any delay in the making of the secure accommodation and recovery orders that could properly be avoided.

In my opinion, none of the authorities that I have referred to above have decided on a considered basis that the parens patriae jurisdiction of this Court does not empower it to make a recovery order directed at officers of the NSW Police Force. In particular, none of the authorities have explained why a jurisdiction that is said to be unlimited is in fact limited in this respect.

In the short judgment of Powell J in Vaughan v Vaughan, Powell J decided without reference to authority that he did not have power to order the issue of a “warrant” against the father in support of the writ of habeas corpus that had already been issued, and he also decided that he did not have power to make an order "binding" on the police authorities. This was in the context where there was apparently evidence before his Honour that such an order would have obliged the police authorities to act counter to their then current practice, which was that they would not take steps to assist in the service of the writ of habeas corpus unless the father came under police notice for some form of offence.

The plaintiffs made a submission based upon the comment at [14] in Re Jules by Brereton J that he "was concerned that the Court did not, at least in its parens patriae jurisdiction, have power to make the orders sought conferring authority on the officers of the New South Wales Police Force to search and take custody of the child" (emphasis added), that his Honour's judgment should not be treated as being a statement of a considered view that the power did not exist. However, it is to be noted that Brereton J said in the same paragraph that his concern was "subsequently confirmed" by reference to the judgment of Powell J in Vaughan v Vaughan.

As the Attorney General's submissions to Henry J in Re Neil (No 5) attest, the "police services" that are provided by the NSW Police Force under the Police Act now extend to the protection of persons from injury or death in any way. The evidence in this case shows that the Police Force is prepared to cooperate with and assist the plaintiffs, as is shown by the arrangements that were made for the recovery of Emma, if necessary, and her transport to Secure House.

Furthermore, s 245E of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides:

By s 245B(1) of that Act, “prescribed body” is defined to mean, inter alia, “(a) any body or organisation specified in section 246(6)…” That sub-section relevantly provides:

Consequently, the position is that not only is it a “police service” provided by the NSW Police Force to protect Emma from injury or death in any way, but the Police Force and the Department administered by the Secretary have a statutory duty in relation to Emma’s safety and welfare to take reasonable steps to coordinate decision-making and the delivery of services relating to her, and, as may be expected, the Secretary and relevant officers of the NSW Police Force have anticipated the making of secure accommodation and recovery orders by the Court by agreeing to practical arrangements to facilitate the implementation of those orders.

Those circumstances invite contemplation of what is the real meaning and legal effect of the recovery orders that have historically been made by this Court, based upon cross-vested Family Court jurisdiction, which have been formulated in the terms of authorising and directing the officers of the NSW Police Force to recover the subject young person, using terms that arise out of the wording of s 67Q of the Family Law Act. It cannot rationally be intended that the order would operate personally against every officer of the NSW Police Force, such that they would be required immediately to cease what they were doing and collectively act to recover the young person. Each officer would not be liable for punishment for contempt by failing to implement the order. In reality, the order is in the nature of an administrative order intended to cause the NSW Police Force, through the agency of some officer appointed for that purpose by the Commissioner of Police, to make suitable arrangements to enable appropriate officers to implement the order. The order could not impose personal obligations on all officers without them being joined to the proceedings or being personally served with the orders.

For my own part, I consider that, as the parens patriae jurisdiction is described in authority binding on me as being practically unlimited, this Court must be taken to have jurisdiction to make recovery orders unless that jurisdiction can be shown to be excluded by some paramount power. It is not necessary for some external conferral of jurisdiction to be found before it can be exercised. It may be thought difficult to conjure up ways to rationally limit the unlimited. Furthermore, as the future cannot be foretold, it may be unwise to impose arbitrary limitations on the jurisdiction. I respectfully agree with the reasons given by Henry J for making the interlocutory recovery orders in Re Neil (No 5). If, as is the case, the parens patriae jurisdiction empowers this Court to make orders in favour of the plaintiffs that have the extensive consequences of the secure accommodation orders, there seems to be no logical reason why the Court should lack power to extend and modify the orders to authorise the officers of the NSW Police Force to search for, find and deliver Emma to the Secretary or the Secretary’s delegate.

It would probably require an extreme case for the Court to consider making a recovery order under the parens patriae jurisdiction against a named person, whether an officer of the NSW Police Force or not, in circumstances where it was intended that the person be required to execute the order on pain of punishment for contempt. It would be necessary to make the person a party to the proceedings, and, if the circumstances justified the making of the order ex parte, it might be necessary for the order to be made subject to a grant of leave to the person to apply to vacate it. However, for the reasons that I have given above, I do not think that the conventional recovery orders are intended to operate in that way.

It may be more correct in these circumstances to treat the order for recovery that the Court makes as an authorisation in favour of the officers of the NSW Police Force. That would have the effect of establishing that the officers who provided the police services to Emma contemplated by s 6 of the Police Act were acting with the authority of the Court even if, at the time Emma was recovered, she was not acting in a manner that would ordinarily justify the police officers in detaining her or limiting her freedom. The relevant officers may have statutory authority in the exercise of their duty to decide for themselves that the circumstances justify their recovering Emma and delivering her to the Secretary or the Secretary’s delegate. But the circumstances and the urgency of the situation may not realistically permit the relevant officers to make that decision in the proper exercise of their sworn duties. It may be that the true effect of the Court’s exercise of its parens patriae jurisdiction to make a recovery order in the conventional form is to facilitate and augment the ability of the relevant officers of the NSW Public and Police Services to act with the necessary expedition, effectiveness and authority to protect the subject young person.

Although the expression "authorise and direct" appears to have derived from the orders that were formerly made under the cross-vested Family Law Act jurisdiction because of the definition of "recovery order" in s 67Q, which uses the expression "authorising or directing", there may be scope in the future to give further thought to the appropriateness of the order containing expressions of command.

It is for these reasons that I consider that the Court has power in the exercise of its parens patriae jurisdiction to make recovery orders directed at officers of the NSW Police Force, without invoking the artifice of requiring the plaintiffs first to commence proceedings in a local court so that those proceedings may then be removed to this Court for the purpose of the determination of those proceedings.