Hawkins v Whitla - [2024] QSC 201

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 Brisbane

DELIVERED 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 8

Batista 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, cited

COUNSEL:

C A Brewer for the applicant
K J Kluss for the first respondent
C A Doubikin (legal officer) for the second respondent

SOLICITORS:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hawkins v Whitla

Details

AGLC: Hawkins v Whitla [2024] QSC 201
Case: [2024] QSC 201
Decision Date: 6 September 2024

CaseChat Overview and Summary

In the case of Hawkins v Whitla, Carmel Hawkins, born on 26 October 1945, sought to have her adoption order discharged on the basis that her biological mother, Marjorie Wallace, had not given her consent freely and voluntarily. The adoption order was made on 20 December 1945 under the Adoption Act 2009 (Qld). The legal issues before the court were whether the consent given by Wallace was indeed not given freely and voluntarily, and if the evidence provided by Hawkins was admissible to establish this. The court had to consider the admissibility of hearsay evidence, specifically statements made by Wallace nearly 50 years after the adoption.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Brisbane
DELIVERED 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 8 Batista 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, cited
COUNSEL:	C A Brewer for the applicant K J Kluss for the first respondent C A Doubikin (legal officer) for the second respondent
SOLICITORS:	Hopgood Ganim for the applicant McCullough Robertson for the first respondent