Hawkins v Whitla
[2024] QSC 201
•6 September 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Hawkins v Whitla [2024] QSC 201
PARTIES:
CARMEL MARY HAWKINS
(applicant)
v
SCOTT GRAHAM WHITLA AS EXECUTOR OF THE WILL OF MARJORIE JOAN WALLACE DECEASED
(first respondent)
CHIEF EXECUTIVE, DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES
(second respondent)FILE NO:
5528 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
6 September 2024
DELIVERED AT:
Brisbane
HEARING DATE:
13 June 2024
JUDGE:
Martin SJA
ORDERS:
The application is dismissed.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – ADOPTION – DISCHARGE OF ORDER – where the applicant was born on 26 October 1945 – where the applicant’s biological mother signed a Consent to Adoption Order and later the applicant was formally adopted by an adoption order made on 20 December 1945 – where the applicant seeks to have the adoption order discharged under the Adoption Act 2009 (Qld) on the basis that her biological mother’s consent was not given freely and voluntarily – whether the consent given by the applicant’s biological mother was not given freely and voluntarily
EVIDENCE – ADMISSIBILITY – HEARSAY – OTHER MATTERS – where the applicant argues that her biological mother’s consent to the adoption was not given freely and voluntarily – where the applicant’s biological mother died in August 2023 – where the applicant relies upon, among other things, evidence of statements allegedly made by her biological mother to the applicant and other people relating to the adoption – whether the evidence is admissible to prove the applicant’s biological mother held particular views at the time of the applicant’s adoption or that her parents had not allowed her to keep her child or that her consent was not given freely and voluntarily
Adoption Act 2009 (Qld), s 6, s 214, s 219(1)(b), s 331
The Adoption of Children Acts 1935 to 1941 (Qld), s 5, s 6,
s 8Batista v Citra Constructions Pty Ltd (1986) 5 NSWLR 351, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Collins v R (1980) 31 ALR 257, cited
ESA v Department of Child Safety, Youth and Women [2019] QSC 234, cited
Meissner v R (1994) 184 CLR 132, cited
R v Hissey (1973) 6 SASR 280, cited
Re Susan [2009] NSWSC 592, cited
Tonkiss v Graham [2002] NSWSC 891, cited
Walton v The Queen (1998) 166 CLR 283, citedCOUNSEL:
C A Brewer for the applicant
K J Kluss for the first respondent
C A Doubikin (legal officer) for the second respondentSOLICITORS:
Hopgood Ganim for the applicant
McCullough Robertson for the first respondent
Carmel Hawkins was born on 26 October 1945. Seventeen days later, her biological mother – Marjorie Wallace – signed a Consent to Adoption Order. Ms Hawkins was placed into the care of her adoptive parents on 22 November 1945 and she was formally adopted by them one month later.
By this application Ms Hawkins seeks to have the adoption order discharged under Part 9 Division 7 of the Adoption Act 2009 (the Act).
The ground relied upon is that the consent required for the adoption was not given freely and voluntarily by Marjorie Wallace. The first respondent contends that the evidence does not support the conclusion required by the Act.
Ms Hawkins is eligible to make this application because she is the “adopted person” referred to in s 220 of the Act. Her adoptive parents are dead. They had no other children. Her biological mother died in August 2023. Her biological father is unknown.
The legislative basis for the discharge of a final adoption order
The adoption order was made under The Adoption of Children Acts 1935-1941. Adoptions under that statute were deemed to be adoptions under the succeeding legislation – the Adoption of Children Act 1964. The Act provides (s 331) that an adoption order in force under the Adoption of Children Act 1964 may be discharged under the provisions of the Act.
The Adoption of Children Acts provided that before any adoption order could be made:
(a)in the case of an illegitimate child, the consent of the mother was required (s 5(4)); and
(b)the Director had to be satisfied that “every person whose consent” was necessary has consented to and understood the nature and effect of the adoption order for which the application was made and, in particular in the case of any parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights (s 6(a)).
Section 8 of The Adoption of Children Acts provided that the effect of an adoption was as follows:
“(1) Upon an adoption order being made the child shall, unless the adopting order otherwise provides, assume the surname of the adopting parent or parents, and all rights, duties, obligations, and liabilities of the parent or parents, guardian or guardians of the adopted child in relation to the future custody, maintenance, and education of the adopted child, including all rights to appoint a guardian or to consent to or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations, and liabilities shall vest in and be exercisable by and enforceable against the adopter or adopters as though the adopted child was a child born to the adopter or adopters in lawful wedlock; and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopter or adopters exclusively in the position of a child born to the adopter or adopters in lawful wedlock.”
Part 9 Division 7 of the Act sets out the procedures which must be followed and the tests which must be satisfied on an application of this kind. The construction of that part is informed by the setting provided by the balance of the legislation because the primary object of statutory construction is to construe the relevant provisions so that they are consistent with the language and purpose of all the provisions of the statute.[1]
[1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
Section 6 of the Act provides that the Act is to be administered under the principle that the wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life, are paramount. Section 6(2) also provides that the Act is to be administered under the principle that “the purpose of an adoption is to provide for a child’s long-term care, wellbeing and development by creating a permanent parent-child relationship between the child and the adoptive parents”.
The permanence of the new relationship created under the Act is emphasised in s 214. It provides that, on the making of a final adoption order:
“(2)The adopted child becomes a child of the adoptive parent and the adoptive parent becomes a parent of the adopted child.
(3)The adopted child stops being a child of a former parent and a former parent stops being a parent of the adopted child.
(4)Other relationships are determined in accordance with subsections (2) and (3).”
Section 219 provides the grounds upon which a discharge may be sought. The applicant relies only on s 219(1)(b):
“(1)A final adoption order may be discharged on any of the following grounds—
…
(b)a consent required for the adoption was not given freely and voluntarily by a person with capacity to give the consent;
…”
The effect of a discharge order is set out in s 226:
“(1)On the making of an order discharging the final adoption order (the discharge order), the rights, privileges, duties, liabilities and relationships of the child and all other persons are the same as if the final adoption order had not been made.
(2)However, the making of the discharge order does not affect—
(a)anything lawfully done, or the consequences of anything lawfully done, while the final adoption order was in force; or
(b)a right, privilege or liability acquired, accrued or incurred while the final adoption order was in force.
(3)The discharge order does not affect a consent given to the child’s adoption unless the court decides otherwise.
…”
What is the standard of proof?
Mr Whitla objected to some parts of the affidavits relied upon by the applicant. Some of the responses to those objections rely upon the material in the affidavits being “background evidence” which supports other direct evidence. It is permissible to give evidence which is not strictly relevant to an issue where it is provided as narrative and used to place other evidence in context. It is not permissible where, as occurred in a number of affidavits, it is just a recitation of family relationships which do not bear upon the application. Other statements were relied upon as being a description of how “Joan came across” to the deponent based upon conversations the deponent had with her. That is not admissible. It is mere opinion evidence. This, and Mr Whitla’s other submissions, raises the issue of the appropriate standard of proof on an application of this kind.
In Briginshaw v Briginshaw[2] the High Court held that, on a petition for divorce on the ground of adultery, the standard of proof required under the relevant legislation was not that of proof beyond reasonable doubt. The case is cited most often for these well-known observations of Dixon J:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[3]
[2] (1938) 60 CLR 336.
[3] At 361-362.
On the “consequences flowing from” a discharge order, I respectfully agree with the observations of Boddice J in ESA v Department of Child Safety, Youth and Women:[4]
(a)“To discharge an adoption order is a grave step” (at [41]); and
(b)“Such an order thereby dismantles a family unit in the eyes of law” (at [41]).
[4] [2019] QSC 234.
The effect of an adoption order (of the kind made in New South Wales) was described by Palmer J in this way:
“[23] The law equates, so far as is possible, the relationship between adoptive parent and adoptive child with the relationship between birth parent and child. The parental relationship is the most fundamental, enduring and significant of all human relationships. Severance of that relationship by the discharge of an adoption order can overturn the identity, family structure and legal relationships not only of the adopted person but of many others as well. While the Court has paramount regard to the interests of the child in exercising its discretion whether an adoption order should be discharged if the facts alleged have been established, the Court must, in satisfying itself that such facts have indeed been established, bear in mind the effect that the order may have on the interests of others.” [5]
[5] Re Susan [2009] NSWSC 592.
Palmer J went on to consider the burden borne by the applicant seeking a discharge order:
“[24] Accordingly, in an application for discharge of an adoption order by an adopted child, the Court cannot, on the ground of advancing the child's best interests, give the child the benefit of the evidentiary doubt in the exercise of finding whether the facts supporting the application have been proved to its satisfaction. The Court must be satisfied to the appropriate standard that the facts calling into play the exercise of the discretion have been proved.”
Given the consequences of discharging an adoption order, an applicant should seek to persuade the court with clear and cogent evidence and not rely upon “inexact proofs, indefinite testimony, or indirect inferences.”
What do the words “consent was … not given freely and voluntarily by a person with capacity to give the consent” in s 219(1)(b) mean?
The issue raised in this matter is only about the nature of the consent, not whether Ms Wallace had the capacity to give it.
Other jurisdictions in Australia do not have provisions analogous to s 219(1)(b). But informative consideration has been given to the words “freely and voluntarily” in other legislative circumstances. Campbell J, in Tonkiss v Graham,[6] analysed the use of the term in other contexts and concluded:
“[78] Of course, given the vastly different contexts in which the judicial statements which I have just been quoting about when an act is free and voluntary have been made, one cannot expect to transfer those statements directly into the context of s13 of the Wills, Probate and Administration Act. They serve, though, to remind one that the notion of acting "freely and voluntary" is one which has a relationship implicit in it. One acts ‘freely and voluntarily’ when one acts free from circumstances constraining one's actions. The sort of circumstances which the cases I have quoted recognise as being ones which can, sometimes, result in action not being free and voluntary included duress, intimidation, persistent importunity, sustained or undue insistence or pressure, harassment, force, threats, fear, fraud, being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice. However, as the discussion and the quoted extract from Meissner shows, the mere fact that an action occurs in a context where the actor is subject to one or more of these types of constraints, an action is not always sufficient, in itself, to lead to the conclusion that the actor has not acted freely and voluntary. One legal context in which one enquires whether an action is done "freely and voluntarily" might require the absence of a different range of constraining conditions to a different legal context in which one enquires whether an action is done "freely and voluntarily". Or one such legal context might call for those factors to be weighted differently to the way they are weighted in a different legal context. Further, as the quoted extract from Cleland shows, whether an action is in fact not free and voluntary depends on the interaction of the constraining circumstances with the particular actor.” (emphasis added)
[6] [2002] NSWSC 891.
The notion of acting “freely and voluntarily” often arises when a court considers the admissibility of a confession. In Campbell J’s reasons he referred to a decision of Brennan J as being from Cleland v R.[7] That is an error. The extract relied upon is actually from Collins v R[8] where Brennan J said:
“The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”[9] (emphasis added)
[7] (1982) 151 CLR 1.
[8] (1980) 31 ALR 257 at 307.
[9] ibid at 18.
There are many cases dealing with the issue of the voluntariness of a confession or a plea of guilty in which a principle of general application is expressed. One is Meissner v R[10] where Brennan, Toohey and McHugh JJ said:
“Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.”[11]
[10] (1994) 184 CLR 132.
[11] ibid at 143.
For the purposes of this application, in addition to the matters discussed above, the circumstances which might constrain a person’s actions should be considered, so far as it is possible, in the light of the social values which were of general application at the relevant time. It is nearly 80 years since Marjorie Wallace signed the Consent to Adoption Order and it would be a mistake to assess whether that consent was given freely and voluntarily through the prism of the values generally held today. It was not in contest that, at that time, the birth of a child out of wedlock could attract shame for the mother.
The existence of “constraining circumstances” does not, without more, require a conclusion that a person did not act freely and voluntarily. The nature of a consent given will depend upon many factors including whether any identified constraining circumstances influenced the decisions made by a person. The mere fact that a person makes a decision after taking into account prevailing social mores does not make that decision any less free or voluntary. There must be more. There must be something in the nature of an undue external force which overcomes or affects the ability of the person to make a decision freely and voluntarily.
Was the consent given freely and voluntarily?
The applicant relies upon evidence in three broad groups:
(a)the documents created and signed soon after the applicant’s birth (“the adoption documents”);
(b)the evidence of statements allegedly made by Marjorie Wallace to other people relating to the adoption; and
(c)the statements made by Marjorie Wallace to the applicant when they met and later.
The adoption documents
Section 17(9) of The Infant Life Protection Acts, 1905 to 1935 required that:
“Any district registrar, assistant district registrar, or officer of police who receives notice as aforesaid of the birth or death of an illegitimate child shall forthwith notify the Director in writing of the receipt by him of such notice together with the particulars thereof.”
Notice under that Act was given and, on 31 October 1945, a “History for Investigation” document was created. It is a preprinted form in which handwritten details appear. The document is addressed to the “Director, State Children Department”. It is admissible under s 92 of the Evidence Act 1977.
The relevant particulars identify Marjorie Wallace as the mother. The form contains a heading “Putative Father” and there is provision for the name, occupation, age, religion and so on. On a line commencing with the word “Address” appear the words “Knows nil of father of baby”. On the line commencing “Will he support the child?”, there is no entry.
At the foot of the document under the heading “Remarks” the following appears:
“Says her Father has always kept her & expects he will keep the baby, in any case she intends to get married soon & expects that her husband to be will take the baby also.”
The applicant argues that an inference can be drawn from that record that, at least on 31 October 1945, Ms Wallace had no intention of giving up her baby for adoption. It is also argued that an inference can be drawn that the “contact with the Department relating to the adoption, which prompted a visit to Joan and the filling out of the “History for Investigation” document, did not come from Joan.”
I do not accept that the contents of the “History for Investigation” document necessarily lead to the first of those inferences. The remarks concerning her father, her intention to marry and her expectation that her husband would take the baby are expressions of her belief at the time. If they were her beliefs, then she might not have considered the issue of adoption at that time.
The second inference can be drawn because the “History for Investigations” document was generated in accordance with the provisions of The Infant Life Protection Acts. Its mere creation does not assist one way or the other in drawing an inference.
On 12 December 1945, Ms Wallace signed a “Consent to Adoption Order”. Her signature is witnessed. The document identifies the applicant (by the name she then had) as the infant to be adopted. It goes on to provide:
“I … hereby state that I understand the nature and effect of the adoption order for which application is made … and that in particular I understand that the effect of the order will be to deprive me of my parental rights; and I hereby consent to the making of an adoption order in favour of any applicant approved of by the Director, State Children Department.”
There is no other contemporaneous evidence which can assist on this question.
Statements reportedly made by Marjorie Wallace to other people
The applicant relies upon affidavits from relatives and family friends to adduce evidence of Marjorie Wallace’s statements about the adoption. None of the alleged statements were made at the time that the Consent to Adoption Order was signed or at a time which was reasonably contemporaneous. Some of them consist of statements said to have been made by Marjorie Wallace to a third party who then “repeated” them to a deponent. None of them are admissible for the reasons which follow.
Where a person’s thoughts or feelings are relevant to an issue then evidence that the person made a statement about them will be admissible to prove that those thoughts or feelings were held at the time the statement was made. Whether someone’s actions were not, in fact, made freely and voluntarily is not established just by the existence of a person’s own view that the action taken was not done freely and voluntarily. The issue is whether, if otherwise admissible, that state of mind was brought about by the types of matters referred to by Campbell J in Tonkiss v Graham – there must be evidence of the constraining circumstances.
It is well established that a statement made by a person about that person’s state of mind may be admitted to prove that state of mind.[12] But, it must also have been made contemporaneously with the events referred to in that statement. In Batista v Citra Constructions Pty Ltd[13] Hope JA (with whom Glass and Mahoney JJA agreed) considered the “long established exception to the hearsay rule that makes admissible statements made outside court by a person to the witness giving the evidence. Relevantly the rule is that whenever there is an issue as to a person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence”.[14]
[12] Walton v The Queen (1998) 166 CLR 283 at 302.
[13] (1986) 5 NSWLR 351.
[14] ibid at 354.
There is no reason to divorce that exception about a person’s state of health from a statement about a person’s state of mind. Hope JA went on to consider the need for contemporaneity. He said:
“As regards contemporaneity, evidence of a statement as to a present state of affairs, for example, that the person making the statement had a headache, is undoubtedly admissible. In my opinion the rule is not limited to statements of this complete contemporaneity so long as there is a sufficient degree of closeness in time between fact and statement. In Cross on Evidence, 2nd Australian ed (1979) at 569,[15] the learned authors, in dealing with this question, say: “This is a matter upon which it is impossible to lay down anything in the nature of a rule.”
If by this it is intended to refer to an exact rule I would agree. However, as the learned authors point out, there is a requirement of some degree of contemporaneity ‘between the assertion and the physical sensation proved by it’.”
[15] See now Cross on Evidence at [37135].
The need for contemporaneity was said to be a strict requirement in R v Hissey[16] where the Full Court of the Supreme Court of South Australia relied on the statement by Lord Normand in Lejzor v Teper:[17]
“This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”
[16] (1973) 6 SASR 280 at 294 per Bray CJ, Hogarth and Mitchell JJ.
[17] [1952] AC 480 at 487.
None of the evidence sought to be led on this point can be traced to a date earlier than 1970. Whatever degree of contemporaneity is required, it is not satisfied here. I will refer, briefly, to the evidence in the affidavits sought to be relied on.
(a)Mary Orchard – she says that she was told by her mother (Marjorie Wallace’s sister) in about 1971 that “Joan was made to give up the baby for adoption by Grandma”. This is not a statement by Marjorie Wallace. It is a hearsay statement of opinion by her mother. It is not admissible.
(b)Zelle Hodge – says she was told by Marjorie Wallace that, among other things, “They wouldn’t let me keep the baby.” These and similar statements were made no earlier than 1983 and, more probably, at some time between 2020 and Marjorie Wallace’s death.
(c)Robert Hodge – says he was told by his mother (Marjorie Wallace’s sister) at some time after 1970 that “Joan wanted to keep her”, and that “Grandma Violet was quite opposed to Joan keeping the child” and that Joan was forced to give up the child for adoption. As with the evidence of Mary Orchard, these are not contemporaneous and were, in any event, statements of opinion by his mother.
(d)Anne Morrisson – she gives evidence of what her mother (Marjorie Wallace’s sister) told her in 1971 or 1972. That is not admissible. She does give evidence that Marjorie Wallace never told her that she had had a baby who was adopted or otherwise discussed the matter with her. In other words, she cannot give any useful evidence.
(e)Marguerite Newlove – she worked part time as a volunteer for an organisation called Jigsaw Queensland Inc. In 1991 the relevant legislation was amended to allow, among other things, adopted children to trace their biological parents. She assisted Marjorie Wallace to locate the applicant and she took a note of her discussion with her. This occurred in about March 1994. She records that Ms Wallace told her, among other things, that the baby was “placed for adoption because grandparents would not allow Joan to keep baby, they lived in a small town (Mackay 1945) & grandfather a local business man.”
The evidence set out above is inadmissible for many reasons. In some cases it is hearsay upon hearsay. Where the statements were made by Ms Wallace to a deponent, they were made at a point so distant in time that they cannot come within the exception to the hearsay rule referred to above.
The statements made by Marjorie Wallace to the applicant when they met and later
Carmel Hawkins met her biological mother in April 1994 after the assistance provided by Jigsaw Queensland. During their first face to face discussion Marjorie Wallace spoke about the adoption and said, among other things, “I didn’t want to give you away but my parents said I couldn’t keep you because of the stigma attached.” These and other, similar statements by Ms Wallace were made nearly 50 years after the adoption took place. They are admissible to show that Ms Wallace made those statements but they cannot be admitted as proof that Ms Wallace held those views at the relevant time or that her parents had not allowed her to keep her child or that her consent was not given freely and voluntarily.
Is there any evidence to support a finding that the applicant’s decision was not made freely and voluntarily?
There is no evidence that the consent given by Marjorie Wallace on 12 November 1945 was not given freely and voluntarily.
Orders
The application is dismissed.
I will hear the parties on costs.
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