Murray and Tomas and Anor

Case [2011] FamCA 433

FAMILY COURT OF AUSTRALIA

MURRAY & TOMAS AND ANOR [2011] FamCA 433
FAMILY LAW – CHILDREN– SUMMARY DISMISSAL - stay or dismissal - lack of jurisdiction

Family Law Act 1975 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs and B and Others [2004] HCA 20; 219 CLR 365; 206 ALR 130
Reid & Lynch [2010] FamCAFC 184; (2010) FLC 93-448
Re Macks; Ex parte Saint (2000) 204 CLR 158
In the Marriage of Van Rensburg and Paquay (1993) 16 Fam LR 680
APPLICANT Ms murray
RESPONDENTS:

Ms Tomas and

Mr tomas
INTERVENER: director-general, department of family and community services
FILE NUMBER: PAC 1187 of 2009
DATE DELIVERED: 10 June 2011
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Justice Loughnan
HEARING DATE: 7 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K. Conti Mills
SOLICITOR FOR THE APPLICANT: Neagle Lawyers
COUNSEL FOR THE RESPONDENTS Ms. L. Paraska
SOLICITOR FOR THE RESPONDENT Selective Lawyers
COUNSEL FOR THE DIRECTOR-GENERAL OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Ms V. Hartstein
SOLICITOR FOR THE DIRECTOR-GENERAL OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Crown Solicitor

Orders

1.That there be no order.

IT IS NOTED that publication of this judgment under the pseudonym Murray & Tomas and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1187 of 2009

Ms Murray

Applicant

and

Ms Tomas and Mr Tomas

Respondents

and

Director-General, Department of Family and Community Services

Intervener

REASONS FOR JUDGMENT

This is a revised version of reasons for judgment published on 10 June 2011. The revision relates solely to a chronology provided by the parties which was wrongly engrossed in the judgment as originally published.

introduction

  1. These proceedings are about a child, S Tomas (“[S]”). She was born in Samoa in June 2007 and is 4 years of age at the time of the interim hearing. Ms Murray, is the child’s biological mother. She is the applicant for the purposes of these interlocutory proceedings. The Respondents are the child’s great aunt and uncle respectively (“Mr and Ms [Tomas]”). They adopted the child in late June 2007 under Samoan law and have had her in their care since February or March 2009, when she was about 19 or 20 months old. They commenced the substantive proceedings in 2009 and those proceedings are listed for final hearing in July 2011.

  2. There is a confusion of applicants and respondents and the parties have variously referred to themselves at both. The moving party before me is Ms Murray and I will refer to her as the applicant.

  3. The applicant seeks that the substantive proceedings be stayed or dismissed because this Court does not have jurisdiction entertain them.

  4. After being requested to do so, the Director-General of the NSW Department of Family and Community Services intervened in the proceedings.

applications

  1. The orders sought by the applicant are contained in her Amended Response filed 21 December 2009 as follows:

    1.That the…

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Murray and Tomas and Anor [2011] FamCA 433
Case
[2011] FamCA 433
Decision Date

CaseChat Overview and Summary

The proceedings involved the applicants, Mr and Mrs Tomas, who sought sole parental responsibility and for a child, S Tomas (also known as Murray), to live with them. The respondent was the child's biological mother, residing in Samoa. The applicants, who are the maternal great aunt and great uncle of the child, had migrated to Australia from Samoa in 1997. The respondent sought a declaration that the Family Court of Australia lacked jurisdiction, that the application be stayed or dismissed, and for the child to be returned to Samoa.

The central legal issue before the court was whether the Family Court of Australia possessed jurisdiction to hear the matter, which the applicants framed as parenting proceedings under the *Family Law Act 1975* (Cth). The respondent contended that the proceedings were, in substance, adoption proceedings, which fell outside the Family Court's jurisdiction. Further issues included whether the applicants were using the court to validate an irregular or illegal adoption and immigration arrangement, and if jurisdiction was found, whether making orders would create a conflict of laws with Australian and New South Wales adoption and immigration requirements.

Justice Loughnan determined that the Family Court of Australia did not have jurisdiction to hear the proceedings. The court reasoned that the applicants' request for sole parental responsibility and for the child to live with them, in the context of a Samoan adoption order (later discharged) and the applicants' efforts to secure New Zealand citizenship and a passport for the child to enter Australia, indicated that the substance of the application was to validate an adoption. The court found that the *Family Law Act 1975* does not grant original jurisdiction in adoption proceedings, and that the circumstances involved private inter-country adoption from a non-Hague Convention country, which required specific validation under Australian and New South Wales law, including immigration requirements, that had not been met. The court concluded that the Family Court was being used for a collateral purpose to circumvent these legal requirements, constituting an abuse of process.

Consequently, the court made an order that there be no order, effectively dismissing the application for lack of jurisdiction.

Orders

Orders of the court

1. That there be no order.

Background

Background to the litigation

The written submissions on behalf of the Applicant are as follows:1.The Family Court of Australia has no jurisdiction to hear these proceedings or to have ever heard these proceedings on the basis that:a)These proceedings are adoption proceedings AND not parenting proceedings OR any other proceedings to which the Family Law Act 1975 would apply. No consent has ever been given by the respondent for the Family Court of Australia to determine this matter, and;b)The Family Court of Australia, through the application of the Family Law Act 1975, is being used by the Applicants to validate a situation involving the adoption of a child which is otherwise irregular, improper or illegal pursuant to the adoption and immigration requirements of the Commonwealth of Australia and the State of New South Wales.Background2.The applicants, Mr and Mrs [TOMAS], by way of an application filed 1 December 2009, seek final orders for sole parental responsibility of the child, [S TOMAS] (aka [MURRAY]) (‘the child’) and for the child to live with them. The applicants are the maternal great aunt and great uncle of the child.[1] The applicants are resident in Australia having migrated to Australia in 1997 from Samoa.[2] [1] Affidavit of [Ms Murray], sworn 24.2.2010, filed 24.2.2010, paragraph 12.[2] Affidavit of [Ms Tomas], sworn 18.2.2010, filed 22.2.2010, paragraph 4.3.The respondent is the biological mother of the child. The respondent is a resident of and citizen of Samoa and resides there with her husband, [Mr MURRAY], the biological father of [the child], and their 8 other children.[3] The respondent, by way of an amended response filed 21 December 2009, seeks final orders that this question of jurisdiction be heard and determined, that the Family Court make a declaration that it does not have jurisdiction in relation to the matter, that the application filed 1 December 2009 be permanently stayed or dismissed and that the applicants deliver the child to the respondent for the purpose of returning the child to Samoa. In the alternative, (and only in the event the Family Court of Australia has jurisdiction) the respondent seeks orders inter alia that she have sole parental responsibility for the child and for the child to live with her.[3] Affidavit of [Ms Murray], op cit, paragraphs 1-9.4.The child, [S MURRAY/TOMAS] was born [in] June 2007. Prior to her birth, a request was made by the applicants to the respondent and her husband that this child should be given to them.[4] There are cultural nuances particular to Samoan culture relating to this request.[5] There was an agreement to this by the respondent, albeit reluctantly[6], and the respondent obtained an adoption order from the District Court in Samoa on 24 January 2008.[7] On 3 February 2009 the respondent travelled with the child to Australia for the purpose of delivering the child to the applicants.[8] It should be noted that at this point [Mr and Ms TOMAS] were the parents of [S] as far as Samoan law and Mrs [MURRAY] were concerned. The child was 20 months of age at this time. The applicants had never met the child[9] (apart from Mr [TOMAS] who was in Samoa for a wedding in about December 2008 having seen the child with her parents and siblings at that time)[10]. [4] Affidavit of [Ms Tomas], op cit, paragraphs 16-18.[5] Affidavit of [Ms Tomas], op cit, paragraph 7 and affidavit of [Mrs V], sworn 18.2.2010, filed 22.2.2010 at paragraphs 35 - 39[6] Affidavit of [Ms Murray], op cit, paragraphs 11-19.[7] Affidavit of [Ms Murray], op cit, paragraph 21.[8] Affidavit of [Ms Murray], op cit, paragraph 29.[9] Affidavit of [Ms Murray], op cit, paragraph 28.[10] Oral evidence by [Mr Tomas], 17.3.2010.5.After the adoption order was made by the District Court in Samoa, the Applicant, Mrs [TOMAS], sought to obtain New Zealand Citizenship for the child. Apparently she was able to do this by using New Zealand laws of descent, as Mrs [TOMAS] had previously obtained a grant of New Zealand Citizenship.[11] The New Zealand citizenship for the child became effective on 24 January 2008.[12][11] Document from Immigration New Zealand: “Registration of Citizenship By Descent” signed by [Mr Tomas] 7 April 2008.[12] Document from Immigration New Zealand: “Certificate of Citizenship” issued pursuant to the Citizenship Act (NZ) 1977.6.The applicant, Mrs [TOMAS], having obtained New Zealand Citizenship for the child then sought to obtain a New Zealand Passport for her. The passport for [S] was issued on 29 December 2008.[13] Of particular note within this passport application form is the signature and declarations by the witness [Ms V], witnessed, signed and dated by Ms [V] on 17 December 2008.[14] In this application, the witness declared she had personally known [S TOMAS] for 1 year and declared the photograph as being a true likeness of [S TOMAS]. By her own admission, this witness had never met or seen [the child] at all[15]. This witness was resident in and present in Australia at all material times, having herself been adopted in similar circumstances in about 1994.[16] In addition, this witness is a niece of Mrs [TOMAS]. The New Zealand Passport Form clearly stipulates, “A witness must NOT be a relative or part of the family group of the applicant”. In addition the passport application contains a clear warning that, “It is an offence against the Passports Act 1992 to knowingly or recklessly make a false statement to help anyone get a passport”. Further, the document stipulates, “I understand that if I have provided false information this passport can be cancelled and I can by law be fined or imprisoned.” It is submitted that this witness has made false statements within this passport application, thus allowing the child to be issued with a New Zealand passport and thereby gain entry into Australia pursuant to a 444 class visa (Trans Tasman Visa).[13] Document from Immigration New Zealand: “Passport Application Form” for [S Tomas] dated 19 December 2008.[14] Page 7 of the Passport Application Form.[15] Affidavit of [Mr N], sworn 30 May 2011.[16] See Affidavit of [Mrs V], sworn 18.2.2010 and filed 22.2.2010 paragraphs 15-27.7.It is noted from the evidence that this was not the first time the [TOMASES] or members of their family in Australia had pursued this adoption pathway. The affidavit of [Mrs V] (niece of Mrs [TOMAS]) sworn 18 February 2010 deposes to the means in which she ‘adopted’ [Ms V] from Samoa in 1994 then [child B] and [child C] from Samoa in 2004 – 2008 using the same strategy of making the children New Zealand citizens then obtaining a New Zealand passport so they could gain entry easily into Australia.[17] In the affidavit of [Ms TOMAS] sworn 18 February 2010, she deposes to the fact she has another adopted child, ‘[M]’. [M] went to New Zealand from Samoa with [Ms TOMAS] when he was 1 month old but [Ms TOMAS] had to leave [M] with her niece after 1 month in order to return to Australia. It is apparent from the affidavit that [Ms TOMAS] was unable to bring [M] with her to Australia “because [M’s] adoption paperwork had not been finalised.” Apparently [M] was 3 years old before the paperwork was finalised and he came to Australia.[18] It appears that [Ms TOMAS’S] niece who lives in Brisbane refused to give [M] to the [TOMASES] when he arrived in Australia. A letter dated 9 March 2009 from Campbelltown City Lawyers on behalf of the [TOMASES] addressed to the niece in Brisbane threatened the commencement of legal action if [M] was not returned to the [TOMASES].[19][17] Affidavit of [Mrs V], op cit, paragraphs 15-34.[18] Affidavit of [Ms Tomas], sworn 18.2.2010 and filed 22.2.2010 paragraphs 8-15.[19] Letter from Campbelltown City Lawyers to [Ms T] dated 9 March 2009, exhibit ‘M3’ in proceedings 17.3.2010.8.After arriving in Australia and for various reasons, the respondent changed her mind about leaving the child [S] with the applicants. On Friday 13 March 2009 the applicants purchased an airline ticket for the respondent and the child to return to Samoa. The child was named on the ticket. The date of travel was to be Sunday 15 March 2009.[20][20] Airline ticket “…”, reservation number …. Purchased 13.3.2009. Flight … Sydney to Apia on 15.3.2009 departing at 1700hr. Passengers: [Ms Murray] with infant [S Tomas] (child), exhibit ‘M2’ in proceedings 18.3.2010.9.On Friday 13 March 2009, 2 days prior to the return travel to Samoa and the same day as the applicants purchased the airline ticket for the respondent and [S] to return to Samoa, the applicants filed an application in the Federal Magistrates Court at Parramatta seeking orders to have the child’s name placed on the airports watchlist; sole parental responsibility; and for the child to live with them. The respondent, even though present in Australia, was not served these documents (and was named as the respondent for those proceedings). No affidavit of service was evident on the Court file. The respondent’s evidence was she was not informed of this application and was not served with the documents. On Monday 16 March 2009 the application filed 13 March 2009 was withdrawn. The child’s name was placed on the watchlist upon the filing of the application on Friday 13 March 2009 without the need for Court Orders. The respondent had to leave Australia without the child on 15 March 2009. Given the purchase of the airline ticket and the withdrawal of the proceedings the day after the respondent returned to Samoa, the filing of this application was none other than an abuse of process, using the Federal Magistrates Court for a collateral purpose and for no other purpose than to have the child’s name placed on the airports watchlist.10.Shortly after her return to Samoa, the respondent and her husband attended the District Court in Samoa at Apia to have the Adoption Order of 24 January 2008 discharged. The Adoption Order was discharged by the Samoan District Court on 14 April 2009 on a Motion dated 3 April 2009. Page 4 of this Motion clearly requested the District Court Apia dispense with the consent of the TOMASES.[21][21] Document: Motion for an Order to Discharge Adoption Order dated 3 April 2009.11.The respondent sought to return to Australia to collect the child and after a hold up with the issuing of a visa, she returned to Australia on 14 November 2009 and served the Discharge of Adoption Orders to the applicants.[22][22] Affidavit of [Ms Murray], op cit, paragraphs 57-62. Note the reasons in paragraph 59 for the delay in being granted a visa (Australian sponsor did not sign correct form), the attempt by the [Murray’s] (Samoan) lawyer to contact the applicants in paragraph 57 and the applicant’s change of address and contact details in paragraphs 57, 61 and 62.12.The applicants then filed these proceedings in the Family Court at Parramatta.[23] The matter was listed for Interim Hearing on 22 December 2009. The respondent remained in Australia to see the child and for the Interim Hearing.[23] Application filed 1 December 2009.13.At the Interim Hearing on 22 December 2009, then counsel for the respondent made an application regarding jurisdiction, submitting inter alia, that the proceedings in Australia should be permanently stayed or dismissed on the basis that this Court held no jurisdiction in the matter. 14.At this hearing, the applicant, [Mr TOMAS], tendered a statement dated 22 December 2009 to the Family Court declaring, “Paragraph 3 We had to [sic] all the paperwork through New Zealand so that [the child] could enter Australia permanently...Paragraph 4 [Ms Murray] brought [the child] to Australia, after the paperwork for the adoption was approved by the Australian Government.”[24][24] Statement of [Mr Tomas] 22 December 2009, marked on this day as exhibit “A1”15.The application in relation to the Family Court having no jurisdiction was dismissed on 22 December 2009 and the Court proceeded on an interim basis. The outcome was that the applicants were given parental responsibility and the child was to live with the applicants with the respondent to spend time with the child each Monday, Wednesday and Friday from 11:00am – 5:00pm. No reasons for the dismissal of the application in relation to jurisdiction were provided.16.On 29 January 2010 the applicants gave instructions to their legal representative in Samoa to commence proceedings to set aside the Discharge of Adoption Order dated 14 April 2009. On 9 February 2010 the applicants filed their application in the District Court, Samoa.17.On 17 March 2010, the final hearing in the Family Court of Australia at Parramatta commenced. At the commencement of this hearing the applicants made an application for this hearing to be adjourned pending an outcome in the District Court of Samoa. The respondent opposed this application on the basis of prejudice and utility (including inter alia, the respondent was in Australia for these proceedings having left her husband and 8 other children back in Samoa; the necessity of finalising this matter; the crucial fact that an adjournment would extend indefinitely the amount of time the child was away from her parents and family in Samoa - making it more difficult for the child to return in the future; the fact that it was not known how long proceedings in Samoa would take to resolve or if in fact they will continue to be prosecuted by the [TOMASES]; and that if the outcome in Samoa favoured the [MURRAYS] then it may have no effect if child was still in Australia). 18.The Court raised the issue that at this point it was not determined if the applicants could be considered as ‘parents’ within the meaning of the Family Law Act 1975. As a result, the Court determined to proceed on a further interim basis (not excluding the possibility of final orders) pending a determination in the Samoan Court on the basis that the child was in Australia.19.With the above facts in mind, the respondent sought leave on 17 March 2010 to make a further application to the Family Court in Australia in relation to the issue of jurisdiction. In summary, the respondent again submitted that this application be permanently stayed or dismissed this time on the basis that the Samoan District Court was the more appropriate forum (with the Family Court of Australia being clearly an inappropriate forum) in which to determine the issues in relation to the child and her parenting arrangements. In order for the Samoan Court to do so it was submitted the child should return to her family in Samoa with her mother.20.Again the application re jurisdiction was dismissed. Further interim orders were made and reasons for judgment handed down on 2 June 2010. The child was to remain with the applicants and the applicants would have equal shared parental responsibility. If in Australia, the respondent could spend time with [S] on Mondays, Wednesdays and Fridays for a few hours. 21.The respondent appealed to the Full Court of the Family Court of Australia with two applications on 15 March 2011. Firstly an appeal in relation to bias and secondly an appeal in relation to the substantive judgment. Leave was granted for these appeals to be heard out of time. The appeal court discharged the Judge on the basis of apprehended bias and as a result was of the opinion it was not necessary to determine the substantive appeal as the judgment could no longer be relied upon (possibly unless with the consent of the parties).22.The matter was remitted back to a single judge of the Family Court for final hearing and the orders sought by the respondent continue to press that the Family Court has no jurisdiction and that the [TOMAS’S] application be dismissed.23.In relation to the status of the applicant’s appeal proceedings before the District Court in Apia, Samoa: On 12 June 2010 the District Court gave leave to the [TOMASES] to appeal to the Supreme Court of Samoa, which they did. This appeal in relation to the discharge of the adoption order will now be heard on or about 15 August 2011 by the Supreme Court in Samoa.Issues for Determination24.The nature of these proceedings: Adoption or parenting proceedings?25.If the proceedings are adoption proceedings, then where does the jurisdictional basis of the Family Court derive to continue to hear and determine these proceedings?26.Whether there is an abuse of process in relation to the applicant’s using this court to ratify a situation which would otherwise be irregular, improper or illegal.27.If the Court determines that there is no jurisdiction, then what is to happen given the child remains in Australia pursuant to previous orders of this Court?28.If this Court determines that it has jurisdiction, then is this Court creating a conflict of laws in making orders which allow the child to remain in Australia with the applicants thus bypassing Australian and New South Wales adoption and immigration requirements that would ordinarily apply to a situation like this? The Basis upon which the Respondent says the Family Court has no Jurisdiction29.These proceedings are and have at all times been and are adoption proceedings. Unique to adoption proceedings is the severance of any legal relationship between the biological parents and the child. The orders sought by the applicants seek to achieve this.30.As a result, these proceedings lie outside of the jurisdiction of the Family Court of Australia as they are adoption proceedings, not parenting proceedings as envisaged by the Family Law Act 1975. 31.It is noted that the orders sought by the applicants reflect adoption proceedings rather than parenting proceedings in that they seek that the child live with the applicants and that the applicants have sole parental responsibility for the child. There are no orders seeking spend time with or even communication arrangements for the respondent. The intention of the applicants is to validate an adoption arrangement, not parenting orders as envisaged by the Family Law Act 1975.32.As the matter is not a parenting proceeding, nothing within Part VII of the Family Law Act 1975 applies, including subdivision BA: Best interests of the child.33.The adoption of the child (subsequently revoked by order of the District Court in Samoa on 14 April 2009[25]) is and was in all respects a ‘private inter-country adoption’. These types of adoptions are illegal in Australia and its Territories.[26] [25] see paragraph 56 of the affidavit of [Ms MURRAY] sworn and filed 24.2.2010[26] See Annexure “C” of the affidavit of Mr [N] filed 3 May 2011 as to the documentation written by the Commonwealth Attorney General in relation to private inter-country adoptions and available on their web-site.34.This adoption prior to its discharge on 14 April 2009 was made privately between the great aunt and great uncle in Australia and the parents in Samoa. Samoa is not a signatory to the ‘Convention on Protection of Children and Cooperation in respect of Inter-country Adoption’ signed at the Hague on 29 May 1993.35.The Family Law Act 1975 does not have original jurisdiction in relation to adoption proceedings pursuant to S31 as this is not a matter arising under the law of a Territory (other than the Northern Territory). Neither can the Family Court grant leave for adoption proceedings pursuant to S.60G as Mr and Mrs [TOMAS] do not fall within the definition of a ‘prescribed adopting parent’ pursuant to S4(1).36.Section 111C of the Family Law Act 1975 is not applicable as Samoa is not a ‘prescribed overseas jurisdiction’ as required by Schedule 1A of the Family Law Regulations.37.Section 65G of the Family Law Act 1975 which could apply when under a court order the child would not live with a parent, grandparent or other relative (‘other relative’ is defined in S, 4 of the Act and the definition does not extend to great aunt and great uncle). This section cannot apply on the basis of the definition of ‘other relative’ as well as the fact there is no consent by Mrs [MURRAY] for the Court to make a parenting Order as required by this section.38.Section 65C of the Family Law Act allows “any other person concerned with the care, welfare and development of the child” to apply for a parenting order. However, this section cannot circumvent adoption proceedings. Doing so would present a conflict of laws as against the Commonwealth and State laws and the Commonwealth and other Commonwealth laws in relation to inter-country adoptions and related immigration requirements. It is noted that pursuant to section 109 of the Australian Constitution, a Commonwealth Law prevails over a State Law to the extent of any inconsistency. It is submitted that S.65C of the Family Law Act 1975 is not specific in its terms to void the application of S.116 and S.117 of the Adoption Act NSW 2000. Neither should the delegated authority from the Commonwealth to the States and Territories in relation to the procedures to be used regarding private adoptions from non-Hague Convention countries be voided as a result of S.65C of the Family Law Act 1975.39.If S.65C of the Family Law Act 1975, or indeed, any other section of this Act gives the Family Court jurisdiction in these proceedings then it is submitted there is a conflict between Australia’s international obligations pursuant to the Hague Convention and associated Commonwealth Laws as well as a conflict between the delegated responsibilities of the States and Territories and it may well be a matter that the High Court in its original jurisdiction needs to resolve.40.Therefore, it is submitted that given all of the above considerations there is no jurisdiction of the Family Court, apart from any jurisdiction arising out of Jurisdiction of Courts (Cross-Vesting) Act 1987. It is submitted the correct jurisdiction in relation to these proceedings, being adoption proceedings, is in the Supreme Court of New South Wales, pursuant to Sections 116 and 117 of the Adoption Act NSW 2000. Only these sections of the Adoption Act NSW 2000 can be applicable to this matter given it is a private adoption from a non-Hague convention country and an adoption from a non-prescribed jurisdiction.41.The jurisdiction in relation to non-Hague convention and private inter-country adoptions lies with each state and territory in Australia.[27] [27] A summary of the responsibilities of the Commonwealth and States and Territories is available on the web-site of the Commonwealth Attorney General and annexure ‘D’ to the affidavit of Mr [N] filed 3 May 201142.The responsible Central Authority in New South Wales in relation to inter-country adoptions is ‘Community Services’.[28] [28] The details of the state and territory central authorities in relation to inter-country adoptions is found on the web-site of the Commonwealth Attorney General and annexure ‘E’ to the affidavit of Mr [N] filed 3 May 2011.43.It is the position of the Commonwealth Attorney General[29] that it is not possible to have a private inter-country adoption arrangement because the Immigration (Guardianship of Children) Act 1946 would never permit entry into Australia by a child who had been the subject of a non-Hague Convention Inter-country Adoption and where a private adoption arrangement had not been declared as valid by the Supreme Court of the state or territory concerned, pursuant to that state or territory’s Adoption Act.[29] Telephone discussions, later April 2011 with senior members of the Commonwealth Attorney General’s Office, specifically Ms […].44.This is because the necessary checks and balances (including thorough assessments of the adopting and adoptee parents, as well as assessments of the child including health assessments as required by Australia’s immigration laws) in relation to the adoption in line with the requirements of the state or territory would not have been conducted, therefore any adoptions of this sort are deemed to be illegal.45.It is therefore an issue as to how the child [S] (or any other child for that matter, in circumstances such as this), who is subject to a private inter-country adoption arrangement with a non-Hague Convention country ( this adoption since discharged by the originating country) gained lawful entry into Australia, bypassing not only the requirements of the Immigration (Guardianship of Children) Act 1946 and the Migration Act 1958 but the Adoption Act NSW 2000 and how it is that the applicants now seek to ratify this otherwise illegal arrangement and are using the Family Law Act 1975 in order to do so.46.[S] entered Australia on or about 3 February 2009 on the basis of a Sub Class 444 visa. This is the visa used pursuant to the Trans-Tasman Travel Arrangement between Australia and New Zealand, as enacted in the Migration Act and Regulations, allowing passport holders from both countries to freely enter and exit the other country without the need for any restrictions imposed by other visa classes.47.[S] was at all times an ‘adopted child’. This adoption was never declared as valid by the Supreme Court of New South Wales and the immigration requirements that would ordinarily apply to an adopted child from another country were thus bypassed by the applicants. Adopted children ordinarily gain entry into Australia pursuant to a subclass 102 Visa. This would have been the case whether [S] was a citizen of New Zealand or Samoa.48.It is submitted that the [TOMASES] could not have met, nor will they in the future ever meet, the criteria for the issuing of the subclass 102 adoption visa. The primary criteria pursuant to 102.2 could not have ever been met by them for many reasons but particularly (and in line with S.116 of the Adoption Act NSW 2000) the [TOMASES] had not at the relevant time been resident in Samoa for 12 months. Neither did they have the approval of a competent authority in Australia pursuant to 102.211(3)(d).49.In making the child a New Zealand citizen and obtaining a New Zealand passport, the applicants circumvented the requirements for entry to Australia for adopted children. The act of obtaining the New Zealand citizenship for the child and then obtaining the New Zealand passport was an abuse of process and one which was used for a collateral purpose: to circumvent Australian immigration requirements that would ordinarily apply to situations such as this. Using the Family Court to now ratify this adoption is using this Court for a collateral purpose and consequently a further abuse of process, circumventing the usual requirements of Australian and State law in relation to adoptions.50.Further, by her own admission, the declaration of the witness [Ms V] on [the child’s] passport application is knowingly or recklessly false as Ms [V] could not have ever seen or known [the child] at all until she arrived in Australia with her mother [Ms MURRAY] on 3 February 2009. Yet Ms [V] declares she has personally known the child for 12 months and verifies her photograph is a certified true likeness of [the child]. In addition, Ms [V] declares she is not a family member, when indeed she is a niece of Mrs [TOMAS]. This now raises issues as to the validity of [S’s] New Zealand passport and the 444 class visa upon which she gained entry into Australia, should Ms [V’S] declaration indeed be false. 51.It is submitted that Mrs [Tomas] (and Mr [Tomas]) were fully aware of the obligations set out in the Passport form, having filled out these specific forms and many others like it before. Mrs and Mr [Tomas] in effect either aided and abetted Ms [V] to make the apparently false declaration or were in effect, principals of that possible offence given they were the only ones who were to benefit by Ms [V’s] possible unlawful actions. 52.Adoptions which occur in Hague Convention countries can be declared as valid in Australia provided a ‘Compliance Certificate’ is issued by the originating country. Private adoptions from Non-Hague convention countries do not have the necessary ‘compliance certificate’ and must be declared as valid by the Australian authorities before such adoption is recognised in Australia or in this State. Given the adoption was made in Samoa, an authority in Australia still needed to conduct the many checks required given Samoa is not a signatory to the Hague convention. This was never done in [S’s] case despite the fact the applicant, [Mr TOMAS], made a statement to the Family Court declaring “the adoption was approved by the Australian Government”.[30] This was never the case and such statement has served to mislead the Family Court and the respondent.[30] Statement of [Mr Tomas] 22 December 2009, exhibit ‘A1’in proceedings on 22 December 2009.53.It is submitted that [S] was only made a New Zealand citizen in order for her to obtain a New Zealand passport and thus easily enter Australia without the need for the subclass 102 visa. As previously noted, the criteria for the subclass 102 visa could never have been met by the [TOMASES] neither could the [TOMASES] have met the requirements of S.116 and S.117 of the Adoption Act NSW 2000.[31][31] Section 116 ‘Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions’ requires that : This section applies to an order for the adoption of a person (a) that was made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and (b) if at the time the legal steps that resulted in the adoption were commenced, the adoptive parent or parents (i) had been resident in that country for 12 months or more, or (ii) were domiciled in that country.54.It is submitted that the means employed by the applicants in the Family Law proceedings to obtain the child pursuant to the Samoan adoption and gain her entry into Australia where she remains are void and illegal given the clear requirements in both Australia and in the state of New South Wales in relation to private inter-country adoptions from a non-Hague Convention country, including Australian immigration requirements. 55.It is submitted that the objects and intentions of the Migration Act and Regulations, the Trans Tasman Travel Arrangements and the Immigration (Guardianship of Children) Act are clearly being slighted by this kind of coordinated act of circumvention. Added to that are the relevant breaches of International Human Rights Instruments, including the Hague Convention on Intercountry Adoption, the Convention on the Rights of the Child and the Convention Against Transnational Organized Crime supplemented by Trafficking in Persons--Especially Women and Children Protocol. 56.Of great concern is the possibility of child-smuggling and child trafficking into Australia using the means employed by the applicants, with no checks and balances in place as envisaged by both the Commonwealth and State authorities, the very thing in which Australia’s participation in the Hague Convention, Australia’s immigration requirements and our state adoption requirements seek to eliminate.57.To complicate this matter even further, consent for the Samoan adoption was withdrawn by the respondent on or about 9 February 2009. The adoption order was officially discharged by the District Court in Apia, dispensing with the need for the consent of the [TOMASES] due to the present state of the relationship between the [TOMASES] and the [MURRAYS].[32] As a result, no adoption order currently applies to the child. On this basis, no Australian authority could validate any adoption order as there is none. Even if the [TOMASES] were to successfully appeal the discharge of the adoption order in the Supreme Court of Samoa, as is their intention on 15 August 2011, the adoption still does not and would be unlikely to be approved by an Australian authority as the requirements pursuant to S.116 and S.117 of the Adoption Act NSW 2000 cannot be met by the [TOMASES].[32] Document: ‘Motion for an Order to Discharge Adoption Order’ dated 3 April 2009, page 4.The Law as it applies to this Jurisdictional Issue(A) The Family Law Act 197558.These cannot be parenting proceedings as envisaged by Part VII of the Family Law Act 1975 for the following reasons:a) The proceedings relate only to adoption proceedings and as a result cannot be parenting proceedings to which part VII of the Act applies;b) None of the objects and principals of section 60B of this Act are met, especially with regard to the application of the [TOMASES] before this Honourable Court;c) Despite the discharge of the adoption order by the Samoan Court, the adoption is and never was declared as valid by an Australian Court, therefore the parents of the child can only be Mr and Mrs [MURRAY]. Even if the adoption had not been discharged, the [MURRAYS] would remain as the child’s ‘parents’ until such time as the Samoan adoption was declared valid by Australian authorities;d) S.65G requires the Court’s leave to make a parenting order in favour of a non-parent and also requires the consent of the parties and review by a family consultant. Mrs [MURRAY] has never given her consent for this section to apply. The [TOMASES] do not meet the Act’s requirement of ‘other relative’ of the child as required by S.65G as they are the child’s great aunt and great uncle.e) S.65C allows the [TOMASES] to apply for a parenting order on the basis they are ‘any other person concerned with the care, welfare and development’ of the child. However, this then puts the Family Law Act in conflict with Commonwealth obligations (including Hague Convention obligations) and delegated State and Territory responsibilities arising from relevant Commonwealth obligations, as well as the Adoption Act NSW 2000.f) The Family Law Act 1975 does not have original jurisdiction in relation to adoption proceedings pursuant to S31 as this is not a matter arising under the law of a Territory (other than the Northern Territory). Neither can the Family Court grant leave for adoption proceedings pursuant to S.60G as Mr and Mrs [TOMAS] do not fall within the definition of a ‘prescribed adopting parent’ pursuant to S4(1).(B)Recognition of Samoan Court Orders in Australia and Restitutio In Integrum59.Australia has no legal relationship with Samoa which would allow the acceptance and enforcement of orders made in one jurisdiction to be recognised and enforced within the other jurisdiction. In relation to the adoption, as previously submitted, the Samoan adoption could only be declared as valid in Australia provided a competent Australian Authority has declared it as valid. In any event, the Samoan adoption order has been discharged by the Samoan Court.60.Samoa is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Therefore it is almost impossible for either country to recover a child living within the other country.61.It is submitted that without the validation of an Australian Competent Authority the adoption cannot be recognised by this Court and further, the Family Court of Australia has no jurisdiction as the proceedings relate to an adoption and an abuse of process is occurring in that the Family Court is being used to validate something which is otherwise illegal. 62.As a result, the only way this Court can view the issue if it were to discharge the application of the [TOMASES] would be to recognise the original status of the child and the parties, that being the child as the daughter of the respondent and her legal parent. Under the legal principle of restitutio in integrum it would follow that the child would be restored to the original status as at 13 March 2009, after the purchase of the airline ticket and before the [TOMASES] filed the application in the Federal Magistrates Court seeking parenting orders and the airports watchlist order. [S] should therefore be returned forthwith to her birth mother.63.This Court has the power at any time to discharge its own orders, those being the interim orders of 22 December 2009 and the further interim orders dated 2 June 2010 and determine that as the Court does not have rightful jurisdiction then it follows that the parties be restored to their original status. 64.The Court is asked to note that the proceedings currently before the Supreme Court in Samoa would then finally determine the issues in relation to the adoption and the subsequent discharge of the Adoption Order. Should the [TOMASES] be successful on appeal in Samoa then they will have the chance to meet Australia’s requirements in relation to the adoption of children from a non-Hague Convention Country and related immigration requirements, which to date they have not done. Should they be unsuccessful, then the child has been restored to her parents and brothers and sisters in Samoa.65.Therefore, Restitutio In Integrum must follow if the current application is dismissed.In Conclusion 66.These are clearly adoption proceedings, not parenting proceedings as envisaged by the Family Law Act 1975.67.There are no provisions within the Family Law Act 1975 to provide a basis upon which the Family Court could or should exercise jurisdiction. S.65 is a wide provision permitting anyone who has an interest in a child to apply for a parenting order but such interpretation puts this section in conflict with other provisions within the Act and other Commonwealth and State laws which would have to prevail as a matter of common sense over this section of the Family Law Act 1975.68.The adoption of [S TOMAS] was never recognised as valid by a competent Australian Authority as required by Australian and New South Wales Law. Therefore, even if the adoption existed and was valid in Samoa, it was never valid in Australia. The Family Court is being used by the applicants in their application for the child to live with them and for them to have sole parental responsibility to circumvent the usual requirements in relation to adopted children from non-Hague Convention Countries. The Family Court is being used by the applicants for a collateral purpose and this is nothing less than an abuse of process. The Family Court therefore should not continue to entertain jurisdiction in this matter.69.Further, the Family Court is being used by the applicants to validate a series of events and ultimately an adoption which is otherwise irregular, improper or at worst illegal. In summary, the conduct of the [TOMASES] which is questionable is as follows:(a) Failure to observe Australian and New South Wales law in relation to the validation of a private adoption from a non-Hague Convention Country;(b) Failure to observe Australian immigration requirements in relation to adopted children, instead circumventing the usual Australian Immigration requirements by obtaining a New Zealand Citizenship for the child and then a New Zealand passport to allow ease of entry for the child into Australia pursuant to Trans-Tasman agreements.(c) Further, in relation to the obtaining of the New Zealand passport for the child, there is a possible breach of the requirements of the New Zealand Passports Act in securing a witness to declare that she is not a family member when she is, declare that she has personally known [the child] for 12 months when she had never met nor spoken to [the child] (witness at all times living in and present in Australia and child at all times living and present in Samoa) and declaring that the photograph of [the child] was a certified true likeness of the child when the witness had never seen the child at that time.(d) Providing a sworn statement to the Family Court on 22 December 2009 stating that the adoption was approved by the Australian Government when there is no evidence that the [TOMASES] ever sought validation of the adoption from any competent authority in Australia, prior to the child coming to Australia on 3 March 2009 or in the period after 15 March 2009 up until the respondent returned to Australia on 14 November 2009 and served the adoption discharge papers.(e) Full knowledge that on or about 9 March 2009, the respondent withdrew her consent in relation to the Samoan adoption.(f) Such ‘full knowledge’ evident in the fact that on 13 March 2009 the applicant’s purchased an airline ticket for [S] and her mother to return to Samoa on 15 March 2009.(g) Simultaneously with the purchase of the airline ticket, the [TOMASES] filed an application in the Federal Magistrates Court at Parramatta seeking final parenting orders and for the child to be placed on the watchlist, knowing that despite having that day purchased a ticket for the child to return to Samoa, she would be unable to leave the Australia if she were on the watchlist. This application was withdrawn the following day, 16 March 2009, the [TOMASES] having achieved the goal of keeping [S] in Australia while allowing the respondent to believe she was travelling back to Samoa with her daughter. This was deceptive conduct in the extreme and an abuse of process in using the Court for a collateral purpose.(h) Attending the airport with the mother, then removing the child at the check-in counter and requiring a cousin to attempt to serve the Federal Court Application on the mother and explain she would be arrested if she attempted to remove the child from Australia. 70.This Court therefore has no jurisdiction in this matter and cannot permit an abuse of process whereby the applicants seek for the Court to validate a situation which is otherwise illegal.71.The situation must be returned to the status quo, as the situation existed just prior to any application pursuant to the Family Law Act (ie the application dated 13 March 2009 before the Federal Magistrates Court). That means, the child is named on an airline ticket to travel back to Samoa with her mother and the passport belonging to the child is given to the mother to facilitate the travel back to Samoa.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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