Buxton-Bates and McDiarmid and Anor

This case involved an application by the Director-General of the Department of Community Services (NSW) for the summary dismissal of an Application for Final Orders filed by the mother of two children. The father of the children joined in this application. The mother's application sought declarations that prior Family Court orders establishing her as the preferred carer were res judicata, and that subsequent state child welfare orders placing the children with the father were invalid due to conflict with federal law under section 109 of the Australian Constitution. The proceedings were heard in the Family Court of Australia at Sydney by Steele J.

The central legal issues before the court were whether section 69ZK of the Family Law Act precluded the Family Court from making orders regarding the children's residence, and whether the mother's application was valid given the existence of state child welfare orders. Specifically, the court had to determine if section 69ZK should be interpreted to exclude Family Court orders where state orders effectively reversed a prior residence order, and whether the Children's Court was functus officio after declaring a prior placement order inoperative, thus preventing the making of a subsequent valid order without a fresh finding that the children were in need of care.

Steele J reasoned that section 69ZK(2) clearly vested the power to make care orders in the relevant state court, and section 69ZK(1) precluded the Family Court from making an order for the children to reside with the mother, thereby avoiding inconsistency between federal and state law. The court found no basis to read down section 69ZK, holding that it meant what it appeared to say and that the prior Family Court orders did not create res judicata preventing the state court from making its own orders, particularly as the Department of Community Services was not a party to the earlier proceedings and circumstances had significantly changed. Furthermore, the court determined that the prior interim state orders remained in force and that the Children's Court had jurisdiction to make the final placement order on 27 July 2006, as the defect in the earlier 4 May 2005 order had been rectified by subsequent legislative amendments prescribing the relevant state provisions as "child welfare law."

Consequently, the court ordered that the mother's Application for Final Orders filed on 26 July 2006 be dismissed.