Buxton-Bates and McDiarmid and Anor

[2007] FamCA 288

FAMILY COURT OF AUSTRALIA

BUXTON-BATES & MCDIARMID AND ANOR [2007] FamCA 288

FAMILY LAW - PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out

Family Law Act 1975 (Cth)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

APPLICANT: Ms Buxton-Bates

RESPONDENT: Mr McDiarmid

INTERVENOR: Director General of the Department
of Community Services (NSW)

FILE NUMBER: SYF 3518 of 2006

DATE DELIVERED: 5 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Steele J

HEARING DATE: 5 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: United Legal

COUNSEL FOR THE RESPONDENT: Mr Mantziaris

COUNSEL FOR THE 2^ND RESPONDENT: Ms Richardson

SOLICITOR FOR THE 2^ND RESPONDENT: Crown Solicitor's Office

Orders

1. That the mother’s Application for Final Orders filed 26 July 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3518  of 2006

Ms Buxton-Bates

Applicant

And

Mr McDiarmid

Respondent

And

Director General of the Department of Community Services (NSW)

Second Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the Department of Community Services (“the second respondent”) for summary dismissal of an Application for Final Orders filed on 27 July 2006 on behalf of the mother (“the applicant”) of two children now aged 14 and 10 years. The father (“the first respondent”) of the children in his Response filed 24 August 2006 joins with the second respondent in seeking summary dismissal of the mother’s application. Shortly stated, the second respondent’s position is that the applicant mother is precluded by section 69ZK of the Family Law Act from succeeding.

2. The orders sought by the mother in her application filed 27 July 2006 are in the following form:-

   (1)Declaration that the orders made pursuant to the Family Law Act of 20^th December 2000 create a res judicata binding on the parties as to the issue of which parent is the preferred carer of the children of the marriage, namely a son born in April 1992 and a daughter born in December 1996.

   (2)Declaration that any acceptance of the First Respondent of the placement of the children or either of them under an order made pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) disturbs the settlement reached by the exercise of Federal judicial power pursuant to the Family Law Act 1975 (Cth) so as to be precluded by section 109 of the Australian Constitution and/or Chapter 3 of the Australian Constitution.

   (3)Declaration that any placement by the Second Respondent of the children or either of them with the First Respondent or in his household under an order made pursuant to the Children and Young Person (Care and Protection) Act 1998 NSW disturbs the settlement reached by the exercise of Federal judicial power pursuant to the Family Law Act 1975 (Cth) so as to be precluded by section 109 of the Australian Constitution and/or Chapter 3 of the Australian Constitution.

3. The second respondent’s strike out application is contained within the Application in a Case filed 22 August 2006.

4. The full history of the matter is set out later in this judgment. A truncated summary of the events is as follows. The parties separated in either 1997 or 1999 and in September 2000 orders were made in the B Local Court under the Family Law Act for the children to reside with the mother and have contact with the father. It is not in dispute that the mother had an alcohol problem and as a consequence, in September 2004, the children went to reside with the father. In October 2004 an interim care order under the State child welfare legislation was made for the children to be placed with the father and on 3 November 2004 the Children’s Court, by consent, made a finding that the children were in need of care and protection. A final order for the placement of the children with the father was later made on 4 May 2005. It was later conceded however, that order was inoperative and a later order was made on 27 July 2006 pursuant to the State child welfare legislation by way of a permanent placement order of the children with the father.

5. The mother’s counsel has argued that there is a conflict between the orders made on 27 July 2006 by the State Court and the orders made by the Family Court in September 2000, which attracts the operation of section 109 of the Constitution so as to leave the orders of the Family Court made on 12 September 2000 for the children to reside with the mother as the enforceable orders.

6. The constitutional issue having been raised, the requisite notice under section 78B of the Judiciary Act was sent to all states’ Attorney Generals and I am informed that none of the state’s Attorney Generals presently has any intention to intervene in the matter.

7. Whilst there are other issues arising out of, in particular, the fact that one set of orders made by the State Court under the child welfare legislation on 4 May 2005 was considered to be inoperative, the Department of Community Services argues that the orders made pursuant to the child welfare legislation (section 79(1)(a)(i)) on 27 July 2006 for the permanent placement of the children with their father was effective and valid having regard to the prescription of section 79(1)(a)(i) as a “child welfare law” in Australia pursuant to sections 4 and 69ZK of the Family Law Act.

8. Each of the parties has been represented by counsel and comprehensive written submissions have been provided.  All counsel have had significant opportunity for oral submissions.

Short History

1. The mother was born in October 1967 and is now 39 years of age.  She is employed as a casual domestic cleaner.

2. The father was born in March 1969 and is now 38 years of age.

3. The Director-General of the Department of Community Services (NSW) (“DOCS”) is the person having authority and obligations under the child welfare legislation in New South Wales to promote the objects of the legislation. Those obligations include inter alia an obligation to act without court order to remove young persons from situations of immediate risk – Section 43 of Children and Young Persons (Care and Protection) Act 1998 (NSW).

4. The father and mother commenced cohabitation in July 1990 and were married in December 1990.  Separation occurred in either late 1997 or early 1999 and a decree nisi was pronounced in January 2001 which became absolute in February 2001.

5. There are two children of the marriage, a son born in April 1992 who is now 14 years of age and a daughter born in December 1996 who is now 10 years of age.  They reside with the father.

The Facts

1. The most convenient way to deal with the facts and issues is to set out a comprehensive chronology.  It is as follows:-

   12 September 2000 Orders were made by the State Local Court under the Family Law Act for the children to live with the mother and have contact with the father.

   12 October 2004 The Department of Community Services (DOCS) obtained interim orders from the State Children’s Court under section 69 of the Children and Young Persons Care and Protection Act 1998 (“the State Act”) placing the children in the care of the father (“the interim state order”).

   3 November 2004     The State Children’s Court by consent made a finding that the children were in need of care and protection under sections 71(1)(c) and (d) of the State Act.

   4 May 2005The Children’s Court purported to make a placement order pursuant to section 79(1)(a)(i) of the State Act for both children to live with the father.

   It was later conceded on 5 April 2006 in proceedings before the State Children’s Court by the Attorney General for the State that the order was inoperative because at the time it was made, section 79(1)(a)(i) of the State Act did not fall within the definition of “child welfare law” referred to in section 69ZK(2) of the Family Law Act because (as a result of an apparent oversight) within the terms of section 60D of the Family Law Act, it had not been “prescribed”. At the time the order was made, the definition of “child welfare law” was to be found in section 60D of the Family Law Act which has since been repealed and a similar definition is now contained in section 4(1) of the Family Law Act.

   24 November 2005 On this date the mother filed an application in the Children’s Court pursuant to section 90(1) of the State Act seeking an order for the recision or variation of the earlier order made on 4 May 2005. The mother argued it contravened the Constitution in that the order made by the State Court on 4 May 2005 was inoperative because it was in conflict with the earlier federal order made by the Federal Family Court on 12 September 2000 providing for the children to live with the mother.

   5 April 2006 The Attorney General for the State of New South Wales, having intervened in the mother’s section 90(1) application conceded before the Children’s Court that the order made by the Children’s Court on 4 May 2005 was inoperative not for the reasons submitted on behalf of the mother but because section 79(1)(a)(i) pursuant to which the order of 4 May 2005 was made was not a “child welfare law” within the meaning of section 69ZK(1) because it had not been prescribed as required by the definition of “child welfare law” in the Family Law Act. It was conceded that an inconsistency between the federal and state orders of 12 September 2004 and May 2005 therefore arose and that the state order was invalid to the extent of this inconsistency by virtue of section 109 of the constitution.

   The State Children’s Court dismissed the section 90 application brought by the mother (since the order appealed against was in any event inoperative) and held that the care proceedings were still on foot since the final order of 4 May 2005 purporting to place the children with the father was inoperative. The Court held that the interim state order made on 12 October 2004 was still on foot and that there should be a hearing of the proceedings in the future for the placement of the children. Directions were made to that end by the learned magistrate.

   1 July 2006The Regulations under the Family Law Act were amended to “prescribe” within the meaning of section 4(1) of the Family Law Act inter alia section 79(1)(a)(i) of the State Act (in fact all the provisions of the State Act were prescribed).

   27 July 2006 The Children’s Court conducted the final hearing of the placement proceedings and made orders under section 79(1)(a)(i) and section 86 of the State Act for:-

   ·All aspects of parental responsibility except religion and education be allocated to the father.

   ·The mother to have contact as set out in the orders. (The mother’s counsel now appearing at that time argued that the Court had no jurisdiction and did not seek to argue against the substantive issues.  The mother’s counsel had earlier indicated on 20 July 2006 before the Court that the mother would not take any further part in the proceedings on the basis that the Children’s Court had no jurisdiction.)

1. That chronology of events has been confirmed with the parties during the hearing and is not in dispute.

2. At the commencement of the hearing, although I had available to me and had read the detailed submissions relied on by counsel for the mother, I was less than certain about the defences to the summary dismissal application which the mother’s counsel wished to pursue.  I went to some trouble to have counsel for the mother spell out the issues and his contentions. 

3. Counsel for the mother conceded that if both the orders of 12 October 2004 and 3 November 2004 were valid at the time of the orders of 27 July 2006 were made, then his client would fail. It was not in dispute that if this Court had in fact been deprived of the power to make orders by operation of section 69ZK of the Family Law Act then the mother’s case must fail.

4. In summary, Counsel for the mother said that his arguments amounted to two matters namely:-

   (1)Section 69ZK does not mean what it appears to say. It must be read down to exclude from its operation inter partes orders made by the Family Court in circumstances where the orders made by the State Court have the effect of reversing the Family Court residence order; and

   (2)When the Children’s Court declared the placement orders inoperative on 5 April 2006 following the concession by the Attorney General it was functus officio and another placement order could not be made without a further order being made that the children were in need of care.

5. After consideration, I have found that the result of the sequence of events set out in the chronology is as follows:

(1)Section 69ZK(2) makes it clear that the power to make various care orders (including the order made on 27 July 2006 by the Children’s Court) is to reside with the Court having the power under the child welfare law, that is, in this case the Children’s Court.

(2)Section 69ZK(1) precludes the Family Court from making an order for the children to reside with the mother. The result is that there is no inconsistency between the State and Federal law on the subject.

(3)After the State Order was made on 27 July 2006, the bringing of the Application by the mother to this Court must be doomed to failure since the orders sought, whist obscure in their terms, are orders “in relation to children who are under care of a person under a child welfare law”. The fact that section 79(1)(a)(i) has been prescribed means that the defect which existed with the orders made on 4 May 2005 has been corrected.

1. Having stated shortly my initial views relating to the effect of the orders and the legislation, I turn then to deal with the challenge to those views raised by counsel for the mother, namely:-

   (1)Section 69ZK does not mean what it appears to say. It must be read down to exclude from its operation inter partes orders made by the Family Court in circumstances where the orders made by the State Court have the effect of reversing a residence order.

   ·    Although counsel for the mother said in opening that the section didn’t mean what it said, he actually made no oral submission in support of an alternative meaning despite lengthy submissions made.  His argument was limited to the proposition that it must be read down because any state order must be subservient to the federal order.

   ·    His written submissions suggested that the decision of the Family Court on 20 December 2000 providing for the children to reside with the mother means that the question of which person is to be preferred as resident parent of the children was res judicata and that the father could not benefit from the State Court decision five or six years later.  The benefit was said to derive from having the children reside with him.  It was suggested he was bound by that earlier decision to the effect that the children’s best interests would be served by residing with the mother.  The proceedings in the State Court were brought by DOCS in circumstances where, by consent, a finding had been made four years after the Family Court orders had been made in September 2000 that the children were in need of care and protection.  DOCS was not a party to the earlier Family Court litigation and was not bound by the parenting orders.  The issues were different.  Whilst the orders were made were final orders, they could, at best, in accordance with the principle in Rice v Asplund (1979) FLC 90-725 only restrict the bringing of further proceedings if there had been no significant change in circumstances such as had here occurred. The essential elements of issue estoppel are not present – see Ramsay v Pilgrim 118 CLR 271 at 276 and Kuligowski v Metrobus 220 CLR 363 at 381,43. No question of res judicata arises.

   · Counsel for the mother asserted that the Family Court orders must be superior to the state orders with no apparent basis for that argument except that one is a Federal and the other a State Court in apparent reliance upon section 109 of the Constitution. It is apparent that the scheme of section 69ZK is to avoid confusion and possible conflict in dealing with the powers of the respective courts and it is just such a case as this which demonstrates the need for the regime provided by the section so that the State Courts and Family Court may deal with these matters without confusion arising.

   · Although it may not be relevant to the legal argument, Mr Levet has argued that the mother’s position has changed considerably. He contends that her drinking problem has been resolved and she is precluded by the legislation from bringing the proceedings back before the Family Court, which he perceives as being a more sympathetic forum. The difficulty with this approach, even if relevant, is that at the time when the matter was before the Children’s Court in July 2006, counsel for the mother asserted that there was no jurisdiction for the Children’s Court to deal with the matter and declined to put any evidence forward or to take any part in the proceedings. That would have been the ideal opportunity for the mother to seek to have her position re-investigated or perhaps to bring a further application under section 90 of the State Act to have the earlier care orders overturned. There has been on this application no examination of the facts or merits of the matter.

   · Section 69ZK seems to me to mean what it appears to say and there seems to be no basis for suggesting that the matter be read down as Mr. Levet has done.

   (2)When the Children’s Court declared the placement orders inoperative on 5 April 2006 following the concession by the Attorney General it was functus officio and another placement order could not be made without a further order being made that the children were in need of care.

   ·Counsel for DOCS has argued, correctly I think, that this Court should not look behind the validity of the State Orders because, quite apart from questions of power, the mother has chosen not to appeal any of those orders through the State courts as she could have done. In particular, the orders of 12 October 2004 and 3 November 2004 appear to have continued in force until the orders were made on 27 July 2006 and the mother made no attempt to attack the validity of those orders after the orders of the State Court were made on 4 May 2005 and 5 April 2006. The mother did however, by application filed in the State Court on 24 November 2005 seek leave to apply for a recision or variation of the order made on 4 May 2005 pursuant to section 90 of the State Act. Her application was based upon the proposition that the federal order overrides the state order. The Attorney General subsequently conceded the invalidity of that order, but on a different basis.

   ·In the course of making a finding of a jurisdictional fact, it may be necessary for this Court to make an enquiry about whether there was or was not in place an order of the type referred to in section 69ZK. However, where such an enquiry indicates that such an order appears on its face to be in place it is not for this Court to look behind that order or to make any determination about its validity. That determination, if it is to be made, should be made by the hierarchy of the State Courts. Accordingly, I proceed on the basis that the orders made on 12 October 2004 and 3 November 2004 by the Children’s Court were valid and in force at the time of the orders of 26 July 2006 were made.

   ·If the interim orders of 12 October 2004 were made to take effect until final order or until further order, which I understand they were, then the making of invalid orders on 4 May 2005 did not bring an end to them and they remained on foot.  Similarly, the making of an invalid placement order on 4 May 2005 did not result in the consent orders that the children were in need of care and protection (made on 3 November 2004) coming to an end.  It follows that if I was to look behind the orders made by the State Court, then I would not in any event be satisfied that they are invalid.

   ·The submission made by Mr. Levet that the final placement orders made on 27 July 2006 could not be made without the making of a further finding that the children were in need of care and protection was not supported by any other submission.  In those circumstances, I reject that argument.

   ·It seems to me that the mother’s counsel cannot be heard to contend that the various orders made by the State Children’s Court are invalid where there has been no attempt to appeal those orders in the hierarchy of the State Courts and in circumstances where this Court has no power to do so.

1. I have sought to deal with the particular submissions made out in oral argument by counsel for the mother.  A review of the written submissions made on behalf of the mother indicates that although no oral argument to that effect was pursued, some reliance was to be placed on the assertion that the bringing of care proceedings by DOCS constituted an abuse of power because inter alia the court processes were used for the illegitimate and improper purpose of the reversal of the effect of orders made by the Family Court in September 2000.

2. Counsel for the mother, as I understand it, ultimately withdrew that submission.  In my view, that was the proper course to take. Even if it was not withdrawn, the question of whether proceedings in the State court constituted an abuse of process of the court is a matter for the State courts and not the Family Court.

3. It follows from what I have said that the mother’s application filed 26 July 2006 must fail and I propose to order that it be dismissed.

Order

1. That the mother’s Application for Final Orders filed 26 July 2006 be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.

Associate: 

Date:  28 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BUXTON-BATES & MCDIARMID