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…
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- AGLC
- Hawkins v Whitla [2024] QSC 201
- Case
- [2024] QSC 201
- Decision Date
CaseChat Overview and Summary
The court examined the statements made by Wallace to Hawkins, where she expressed regret about the adoption, attributing her decision to external pressures from her parents due to the stigma associated with the situation. While these statements were deemed admissible to show that Wallace made them, they could not be used to prove that she held these views at the time of the adoption, nor that her parents had prevented her from keeping her child, or that her consent was not given freely and voluntarily. The court found no evidence that Wallace's consent on 12 November 1945 was not given freely and voluntarily. Consequently, the court dismissed Hawkins' application for discharge of the adoption order.
In conclusion, the application to discharge the adoption order was dismissed by the court, which found no evidence to support the claim that Wallace’s consent was not given freely and voluntarily. The court will hear the parties on the matter of costs.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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