Cloud v State of Queensland

[2004] HCATrans 56

[2004] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  Nos B96 and B97 of 2002

B e t w e e n -

MICHAEL CHARLES CLOUD

Applicant

and

THE STATE OF QUEENSLAND

Respondent

Applications for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 11.02 AM

Copyright in the High Court of Australia

MR M.C. CLOUD appeared in person. 

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland:   May it please the Court, I appear with MR C.J. FORREST for the respondent.  (instructed by Crown Solicitor for the State of Queensland) 

KIRBY J:   Now, Mr Cloud, it is a long case.

MR CLOUD:   Yes, I have two applications ‑ ‑ ‑

KIRBY J:   What is there that is new in it?

MR CLOUD:   I have two applications seeking special leave ‑ ‑ ‑

KIRBY J:   You are asking us to have patience.  I have infinite patience, but I have to hear you, so you will have to speak up.

HAYNE J:   I think, to that end, if we muted the Brisbane end, it might help us.

KIRBY J:   So long as Mr Keane can hear.  Can you hear, Mr Keane, now?  We cannot hear you, but as long as you can hear.  If you cannot hear, please make vigorous waving sounds and noises.  Yes, Mr Cloud.

MR CLOUD:   I have two applications seeking special leave.  I need to know the amount of time allocated, since there are two.  Is it 20 minutes for the two together? 

KIRBY J:   That is right.  You will get warning signal after a quarter of an hour.

MR CLOUD:   Yes, okay.  They are dealt with by the Court of Appeal in Brisbane who wrote up their reasons of judgment by three Supreme Court judges.  The basis of my seeking a special leave is because my claims were explicitly to do with adoption matters, and the matter of adoption was never referred to the Commonwealth.  Accordingly, I should have full rights to deal with the details that were in the running of an adoption in the Supreme Court, despite what the judge here has suggested, that some of the matters should have been dealt with in the Family Court that preceded the Supreme Court.

I am also claiming that because of section 118 of the Constitution, the Supreme Court judges have to give attention to detail of the adoption law. In particular, one of the claims is saying that my consent was needed and that the State was negligent to ignore that.

The other claim deals with the fact that, for the process of adoption, I later found evidence that they were writing up very faulty reports.  The matter of having made these faulty reports for adoption, rather than the fact that they may have been used in a Family Court custody matter, is the key issue.  The writing on an adoption is a State issue, writing on the custody would be a family law jurisdiction issue.  What I am hoping is that, because I have a compilation of what I am intending to rely on, if I could just briefly give an overview, because the way that the Supreme Court judges have written it up is misleading.  I can point this out by reference to, for example, the catchwords on page 43 of the appeal book ‑ ‑ ‑

KIRBY J:   You raised the point on section 118 of the Constitution?

MR CLOUD: Yes, section 118:

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records –

The judges ‑ ‑ ‑

KIRBY J:   Yes, I think you raised that point earlier in a summons in this Court which Justice Callinan struck out.  Is that not correct?

MR CLOUD: It is possible that I have raised section 118, but not in relation to adoption consent, I believe, or, if I did, it was not part of the claim ‑ ‑ ‑

KIRBY J:   But it was not this litigation, going back to 1994, I think it is.

MR CLOUD:   In the previous action, I was attempting to sue the Commonwealth ‑ ‑ ‑

KIRBY J:   It is all concerned with the adoption of your son, is that not correct?

MR CLOUD:   Yes, I need to explain something here in my documents here.  There is a little book called My Story, which is issued by the Department of Family Services.  It is item 16.  It says that the Family Court had the role in the adoption, so I was misled into thinking ‑ ‑ ‑

KIRBY J:   You will have to speak into the microphone, or we do not hear it. 

MR CLOUD:   Sorry.  I have the original of the little book with a Queensland logo on it and it is photocopied as item 16.  On the last page, it is said “THE ADOPTION DECISION” – two paragraphs, both mention the Family Court as being the key factor in the adoption process.  Originally, I had no ‑ ‑ ‑

KIRBY J:   But is that not a problem for you, because you have sought special leave to appeal from the Family Court and that has been refused?

MR CLOUD:   That is correct.  Your Honour, it is not a problem at all, and taking account of the Queensland law for referral of powers ‑ ‑ ‑

KIRBY J:   The merits were debated in the Family Court and fully litigated there.  You were not happy with it, and I can understand that this is a serious matter for you.  You then came to this Court, and then that was rejected.  The Court refused special leave.  You started again and now you are here on the third time.

MR CLOUD:   Your Honour, it is very different.  If you would consider the Commonwealth Referral of Powers Act clearly states that a decision of the Family Court cannot interfere with the adoption process or a person having guardianship or care or control or access to a child under the Adoption of Children Act or the Children’s Services Act.  The Family Court decision had no application for an adoption.  It was merely a custody application where both parents applied for sole custody of a child, one stepped out.  The matter of adoption is not in the jurisdiction of the Family Court.  The matter of adoption occurred separately, independently, as a process done by Queensland. 

The only way the Family Court – I hope that I am not using up too much time on this – got into the matter was because Queensland agreed that if access was allowed then they would not adopt.  So the most logical thing was to apply to the Family Court for access.  But they did, as you can see in the little book made for the child, decide that adoption was best.  However, the Commonwealth Powers (Family Law – Children) Act 1990 as it was printed in 1995, item 6, clearly says that:

3(2)     The matters referred to the Parliament of the Commonwealth pursuant to subsection (1) do not include the matter of adoption of children or the matter of the taking, or the making of provision for or in relation to authorising the taking, of action that would prevent or interfere with –

(a)   a Minister, an officer of the State or any other person having or acquiring the custody, guardianship, care or control of children under a provision of an Act specified in schedule 1 –

The Acts at that time were the Children’s Services Act and the Adoption of Children Act.  Now, what that means is that the Family Court could not be interpreted by the State of Queensland as removing all my rights for future access to the child under either the Children’s Services Act or the Adoption of Children Act. 

This is a very important key issue in the matter of re‑litigating the matter, aside from the matter of adoption, which is clearly – the matter of consent to adoption is clearly not a Commonwealth matter.  I should have the right to litigate the matter of consent to adoption freely, unfettered in any way by the Family Court or its decisions.  However, dealing with their decision interfering with me being a guardian for the purpose of consent, that is the key issue.  The Supreme Court has concluded that although I was a guardian at the time the child was handed into adoption, they have concluded that the Adoption Act was not sufficiently broad to include the provisions that are written in it. 

My case should not be considered in any way futile, considering the current Department of Communities’ – that is the Family Services’ new name as of very recently – website, which is item 18, which is saying that my consent is needed, at least if it was happening now.  But it is exactly the same Act as what prevailed in the adoption of the child.  My Health Care Card, which happens to be item 19, has me listed, even now, that I go in and I say that I have not got the child, but I am still listed as the father of Julian on my Health Care Card.  It says that marriage should not be an issue, for the reasons given on the website.  It is a public document that consenting to the adoption of a child should be given full faith and credit. 

It is exactly my case, it is like the respondent is arguing against the content of their own website, if they are going to argue that I was not a guardian within the meaning of the Act.  The referral of powers clearly leaves the matter of adoption as something that cannot be interfered with, and access under the Children’s Services Act and the Adoption Act is something that cannot be interfered with by the Family Court.  Given that there was no application for adoption at the Family Court, that the Family Court could not order or stop an adoption by its own orders, it can only be just that I have the right to litigate the matter of adoption in the Supreme Court and that the Supreme Court cannot say that the Family Court has changed that right. 

Pursuant to section 118 of the Constitution, it is very important that the recognition of the detailed wording of the Adoption Act, which allows a person – I have the Adoption Act here, the Adoption of Children Act 1964, item 7. In its definition of guardian, it is completely compliant with the website at the moment, but at that time it was broad enough to include a person to be deemed a guardian by another State or Territory of the Commonwealth. It could not be interpreted, as has been proposed by the court below, that it was a limited definition and would not apply to me even if I was a guardian.

The decision of the court below misrepresents the situation, because on page 44 of the appeal book they are saying that the absence of the right “is indiscriminately denied to all fathers”.  Well, that is not correct, because the webpage under the same legislation says that the consent is required of both parents, irrespective of marriage. 

My section 117 case is misrepresented because my wording is that I am not referring to any difference in law between New South Wales and Queensland, because in actual fact I have the copies of both laws.  They are much the same – they are both saying every person who is mother or guardian of the child in the case of a person not married.  The difference is that the actual effect of removing the rights to enjoy the status of Children’s Acts and other laws, because the child was in Queensland – it was not an inevitable consequence of the law at all.  So by the court below implying that I am trying to argue the case on differences of laws, which was also implied previously by a High Court judge – I am implying the difference in the actual effect by the laws which are available in Australia, which must all work together, because, in reality, everything works in its perspective with everything else.  

There is ample scope in the Adoption of Children Act, under the definition of guardian, to work with other laws. If the right for these laws to be recognised under section 118 of the Constitution is denied, then what is the point of having the scope written into the definition of guardian?

It seems that the Adoption of Children Act made in 1964 probably had insight towards the Children’s Services Act made in 1965, which you will see in item 8, in that the Adoption of Children Act was geared towards the future.  After that came the Sex Discrimination Act 1984, which is a Commonwealth Act, which, in a treaty part of it, which is a schedule in it, clearly shows that there should be equal rights, regardless of marriage, in matters of adoption and guardianship of children with parents.

The Adoption Act, in allowing references to Commonwealth Acts and laws of other States, is not meaning to be restrictive, and the current policy on the website concurs with that.  The case relies on the importance of looking at detail, especially in the treaties that were concerned in the judges below – they made a few mistakes, if I might just add it here, because part of the items I am relying on, numbers 3 and 4, the Intake Sheet.  The Intake Sheet is an actual copy obtained from the Department of Family Services, freedom of information, it says “ADOPT BABY OUT”.  It is dated the 4^th, and the other one is stamped the 7^th.  The judge was misinformed by the respondent as to the adoption consent date, because my copy is stamped the 7^th. 

I was just saying that, why I added that in, it is difficult to review their writing as being factual.  It is flawed, and I was just about to say in the case of the treaties which have details of rights, which really need to be looked at individually and conceived as to what that right is, and as to whether it was met or not.  Clearly, there are rights of free association and the right to seek knowledge of all things in the treaties.  And the treaties are so important in this age.  I mean, the world news today is an act of terrorism in Spain.  People – I was thinking about this – why do they become terrorists?  I think it is because they do not see other people as needing human rights.

Included, if you read my submissions and my documents I rely on, is the case No 20, where the legislation:

it has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with established rules of international law.

In the case of human rights, the court below is wrong to contend that the treaty was served.  It is so important for people to believe in a government actually from their heart, if I can say that, because they believe in such a fundamental value that resides in the heart of people as human rights.  There are not going to be terrorists, if people believe in that.  The Court has a responsibility to look at the law of a government and say, yes, it can serve treaties, yes, we can serve human rights, we can have happy people who honour the government.  I think that is extremely important. 

It should not be a case where a judge makes an arbitrary decision against section 118 of the Constitution and avoids the detail in law so that a person is treated differently to people in other States, the child loses his rights in other States, and now the person sees a website that says if I go there now, my consent is needed – and the law is exactly the same. The government has it on their website.

So, overall, I think it is important, where this matter involves a treaty, that there is attention to detail, to see that what I have written is to make the use of the laws that exist.  What the court below has written is to try to evade what the court could offer of what people might want in their heart.  I think that justice has a role, the High Court has a role, to see the importance of treaties and to judge the court below.  How could they be true that the treaty was served?  I mean, it just looks like nonsense to me, when actual rights of individuals, as defined in the treaty, are just trodden over

because of an interpretation concerning consent or failure to read in detail the Queensland law for referral of powers, which allows a free arena of litigation in the jurisdiction of the Supreme Court of Queensland under the Acts of that time, which could not be interfered with by the Family Court.  It is in black and white in this.  There is no doubt that the Adoption Act was written to interact with other laws in Australia.  It has always been on the progress, but it would be a backward step to deny that progress.

KIRBY J:   Yes, thank you very much, Mr Cloud.  The Court does not need your assistance, Mr Keane.  We have been greatly assisted by the written submissions which you prepared.

MR KEANE:   If the Court pleases.

KIRBY J:   This application has a long history.  At an earlier stage, in September 1994, the applicant’s complaints were considered by the Court of Appeal of Queensland and, in October 1995, by the Full Court of the Family Court of Australia.  An application for special leave to appeal from the Family Court was refused by this Court on 3 December 1996. 

A further writ of summons issued out of this Court in September 2000 was struck out in August 2001 by Justice Callinan as not reasonably arguable or foreclosed by earlier orders.  Leave to appeal against that order was refused by a Full Court of this Court in June 2002.

In November 2001 the applicant pursued an alternative course in the Supreme Court of Queensland claiming damages arising out of the circumstances involved in the earlier contest.  This action was stayed by order of Justice Cullinane.  New appeals were taken to the Court of Appeal of Queensland.  It dismissed those appeals in November 2002.

Now, for the third time, the applicant is before this Court seeking to appeal.  In our view, the position in this application is as stated by Justice Callinan in respect of the earlier proceedings.  The points propounded are not reasonably arguable or they are foreclosed by earlier judicial orders.  Special leave is accordingly refused.  It must be refused with costs.

AT 11.25 AM THE MATTERS WERE CONCLUDED