Murray and Tomas and Anor
[2011] FamCA 433
•10 June 2011
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
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.
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.
The applicant seeks that the substantive proceedings be stayed or dismissed because this Court does not have jurisdiction entertain them.
After being requested to do so, the Director-General of the NSW Department of Family and Community Services intervened in the proceedings.
applications
The orders sought by the applicant are contained in her Amended Response filed 21 December 2009 as follows:
1.That the hearing be expedited.
2.That the Family Court of Australia does not have jurisdiction in relation to the Initiating Application filed 1 December 2009.
3.That the question of jurisdiction be heard on a summary basis.
4.That the Applicants’ application filed 1 December 2009 be permanently stayed or dismissed.
5.That the Applicants deliver the child to the respondent for the purpose of returning the child to Samoa.
6.…..
The Amended Response seeks other orders “In the Alternative” both on a final and interim basis but paragraphs 2 and 4 were the only paragraphs mentioned in submissions. I understand that paragraph 5 would be a consequential order.
I understand from the written submissions lodged on behalf of the respondents that they seek that the application be dismissed.
written evidence
Counsel for the Respondent handed up an agreed chronology which I will reproduce below. I was told that the same chronology had been put before the Full Court. I was not asked to read any other documents until 1.00pm on the day of the hearing and only after I enquired. The hearing relates to an argument about jurisdiction. I informed counsel that for the sake of the argument I would assume that there is evidence to support the contentions contained in the various submissions.
background evidence
The agreed chronology is as follows:
| Date | Event |
| From March 2007 to June 2007 | Ms Tomas discusses adoption of the unborn child, S, with Mr Tomas |
| April/May 2007 | Ms Tomas phones Ms Murray to ask if she can adopt her child if it is a girl |
| In or around May 2007 | Ms Murray and Ms Tomas discuss the feeding of the child after it is born, either breast fed or bottle fed. |
| June 2007 | The child, S, is born in Samoa. |
| In or around November 2007 | Ms Murray sends adoption papers to Ms Tomas for Mr and Ms Tomas to sign. |
| 24 January 2008 | Court in Samoa makes adoption order for the child in favour of Mr and Ms Tomas. |
| Early December 2008 | The child’s New Zealand passport arrives in Wetern Samoa from the Tomases. Ms Murray applies for a visa to come to Australia |
| Late January 2009 | Mr Tomas pays for Ms Murray and child to travel from Samoa to Sydney. |
| 3 February 2009 | The child, S, arrives in Sydney with Ms Murray and sister X. |
| 9 February 2009 | Ms Murray tells Mr and Ms Tomas she had changed her mind and was taking the child back to Samoa with her. |
| 17 February 2009 | Respondent tells Ms Tomas that she does not want to remain staying in Ms Tomas’s house. |
| 18 February 2009 | Ms Murray and the child travel to Brisbane and stay in a house owned by a woman named T in Brisbane. |
| 8 March 2009 | Ms Murray and child arrive back in Sydney from Brisbane. |
| 9 March 2009 | Ms Murray advises Ms Tomas that she wishes to return to Samoa with the child |
| 9 March 2009 | Mr and Ms Tomas instruct their solicitor to write to cousin in Brisbane seeking that the child M come and live with them |
| 13 March 2009 | Mr and Ms Tomas purchase ticket for Ms Murray and the child to return to Samoa on 15 March 2009 and file an application in the Federal Magistrates Court in Parramatta for child to remain in Australia and be placed on the airports watchlist. |
| 15 March 2009 | Parties attend airport. Whilst at airport Ms Murray is advised by Mr and Ms Tomas and Ms A that the child is on the airport watch list and will not be returning to Samoa. Ms Murray returns to Samoa without the child. |
| 14 April 2009 | Mr and Ms Murray obtain an order from the District Court in Samoa for the discharge of the adoption. |
| June 2009 | Ms Murray applies for a visa to return to Australia. Visa denied because sponsor completed incorrect forms |
| 19 October 2009 | Visa granted to Ms Murray for travel to Australia |
| 30 November 2009 | Ms Murray returns to Sydney and personally serves on Mr and Ms Tomas an order from the District Court in Samoa discharging the adoption. Mr and Ms Tomas say they are unaware that any application to Court in Samoa, until they receive the discharge order from Ms Murray. |
| 8 December 2009 | Mr and Ms Tomas file and application for parenting orders at Parramatta. |
| 21 & 22 December 2009 | Application for interim parenting orders heard in Family Court in Parramatta. Interim orders made that the child live with the applicants Mr and Ms Tomas and spend time with Ms Murray. |
| 28 December 2010 | Ms Muray begins spending regular time with child pursuant to Interim Orders. |
| 22 February 2010 | Mr and Ms Tomas, Ms A and Mrs V file affidavits on behalf of the applicants and served on respondent. |
| 23 February 2010 | Mr and Ms Tomas file an appeal in the District Court of Samoa to set aside the discharge of adoption order |
| 24 February 2010 | Mr and Ms Murray file affidavits on behalf of respondent. |
| 25 February 2010 | MT swears affidavit on behalf of respondent. |
| 9 March 2010 | Family Report released. |
| 17,18 & 22 March 2010 | Final hearing which becomes a further interim hearing before Justice Benjamin |
| 2 June 2010 | Judgment and Orders handed down By Justice Benjamin |
| 29 August 2010 | Mention: Benjamin J invites any party to make an application for disqualification. Adjourned to 1.10.10 |
| 1 October 2010 | Mention: Proceedings further adjourned to 14.12.10 |
| 14 October 2010 | Ms Murray files Notice of Appeal, Application in an Appeal and Affidavit |
| 25 October 2010 | Appeal listed before Justice Coleman |
| 14 December 2010 | Application for disqualification made by Ms Murray’s solicitor. Application refused. Adjourned to 8.3.11 |
| 17 December 2010 | Appeal listed before Justice Coleman. Disqualification issue now subject to appeal and to be heard concurrently with the substantive appeal |
| 28 February 2010 | Supreme Court Samoa on appeal from the District Court: Notice of Motion by Mr and Ms Murray to strike out Mr and Ms Tomas’s appeal unsuccessful. Appeal by Mr and Ms Tomas in relation to the discharge of the adoption order to be heard by the Supreme Court of Samoa next on 18.4.11 |
SUBMISSIONS
Learned counsel for the applicant, the respondents and for the intervener provided extensive written submissions. Counsel spoke to the submissions but save for counsel for the applicant, the oral submissions were brief. Rather than paraphrase them I will set out the written submissions in full.
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.
Background
2.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 Determination
24.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 Jurisdiction
29.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 2011
42.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 1975
58.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 Integrum
59.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.
Although in her written submissions counsel for the applicant has consistently argued that this court has no jurisdiction in these proceedings, in her oral submissions she also said that if the court has jurisdiction it should not exercise it. However, when this issue was raised with learned counsel in light of the decision of 2 June 2010, counsel said that her client was not now seeking to make a forum argument. Therefore, to the extent that there is an argument that the Court has jurisdiction but should not exercise that jurisdiction, it is not a forum argument.
In her oral submissions she argued that the respondents were responsible for a trail of inappropriate conduct; that a cultural adoption had taken place and then been set aside by a Samoan Court and in any event the adoption could never be recognised under Australian law. She argued that by falsifying documents the respondents had avoided Australian immigration requirements using New Zealand citizenship. It is submitted that it was falsely asserted in the applicant’s case that the paper work for the adoption had been approved by the Australian Government. It is submitted that, by trickery, the applicants had a watch list entry made which prevented the mother from removing the child from Australia when she attempted to act on her withdrawal of consent to the adoption.
Two arguments from the written submissions were reinforced – that these are in reality adoption proceedings and not parenting proceedings; and that in any event they are an abuse of process.
In respect of an argument not addressed in the written submission, it is submitted that because of s 69ZH the Court has no jurisdiction over the child. That argument seems to rely on the proposition that these are or are in essence adoption proceedings. Adoption being the subject of welfare laws, the Court is being asked to make orders about welfare matters under s 67ZC. It is submitted that s 69ZH effectively acts as a limitation on the general powers of this court in relation to welfare issues whereby a child must be a child of a marriage. Then, as I understand the submission, I am permitted to read the term “child of a marriage” to include an ex nuptial child. It is submitted that in circumstances not dissimilar to the matter before me, the High Court in Minister for Immigration and Multicultural and Indigenous Affairs and B and Others [2004] HCA 20; 219 CLR 365; 206 ALR 130 found that the Family Court had no jurisdiction.
It is submitted that the Family Court has no jurisdiction. It is submitted that the NSW Supreme Court has jurisdiction in respect of adoptions but that the circumstances of the adoption of the child mean that it could never fall within the requirements of the NSW adoption legislation.
It is submitted that I should be aware of the public interest in preventing international transactions in children; the problems of loop holes in the Australian law and the danger of ratifying a mechanism for the inappropriate transfer of children from a disadvantaged country. It is submitted that the Court should be seen to reinforce the need to use lawful and recognised adoption procedures.
It is submitted that the child was wrongfully retained in Australia by the filing of the application in the Federal Magistrates Court in March 2009.
In relation to the question of adjourning the proceedings until there is a decision from the Samoan Court which is raised in the submissions made on behalf of the intervener, it is submitted that the matter may have no priority in the Samoan Court as it will be pushed aside by “election petitions”. The argument runs that the matter may not be determined by the Samoan Supreme Court on 15 August 2011 when it is currently listed before that Court. It is also submitted that there are appeal rights from the Samoan Supreme Court to its High Court. It is submitted that the mother is prejudiced by any delay because she cannot spend time with the child in accordance with the interim orders because she lives in Samoa.
The submissions for the Respondents are:
OUTLINE OF CASE FOR THE RESPONDENTS TO THE APPLICATION IN A CASE
A.The Subject Child and the Proceedings
1.These proceedings are about a child, [S TOMAS] (“[S]”), born [in] June 2007, aged about 4 years at the time of the interim hearing. The Applicant on the Application in a Case, Mrs [Murray] (“Mrs [Murray]”), is [S’s] biological mother. The Respondents are [S’s] great uncle and aunt respectively (“Mr and Mrs [Tomas]”) and have had [S] in their care since February or March 2009, when she was about 19 or 20 months old. They adopted [S] in late June 2007 under Samoan law. Mrs [sic] [Murray], [S’s] biological father and Mrs [Murray’s] Husband, has not been a party to the proceedings.
2.Through her Application in a Case, Mrs [Murray] seeks to have [S] removed from her home immediately on the basis of a lack of jurisdiction. She says that this can be done after a one-day interim hearing.
3.Mrs [Murray] brought [S] to Australia on 3 February 2009 to effect that adoption – that is, with the intention of leaving [S] in the care of Mr and Mrs [Tomas]. Soon after, Mrs [Murray] changed her mind about leaving [S] with Mr and Mrs [Tomas] and departed for Samoa with [S] on 15 March 2009. Mrs [Murray] had the adoption discharged by the District Court of Samoa on an ex parte basis in November 2009 without notice to Mr and Mrs [Tomas], who have appealed the discharge to the Supreme Court of Samoa. The Appeal is reportedly due to be heard on 15 August 2011.
4.These proceedings have a vexed history. Insofar as is relevant to this Application in a Case, the procedural history is as follows:The proceedings were commenced by Mr and Mrs [Tomas] on 21 December 2009 by Initiating Application wherein no order nor declaration was sought in relation to their status under the Family Law Act 1975 (Cth).The proceedings were listed before Benjamin J on 22 December 2009 and a jurisdictional challenge was mounted by Mrs [Murray], who was legally represented by a Solicitor and Counsel, on the dual bases that the Family Court of Australia was a clearly inappropriate forum, and that it was in the best interests of [S] that the dispute be heard in a Samoan Court. Interim orders were made to the effect that [S] live with Mr and Mrs [Tomas] and spend time with Mrs [Murray].
1.On 23 February 2010, Mr and Mrs [Tomas] applied to set aside the order to discharge the adoption which had been lodged by Mrs [Murray] ex parte without notice to Mr and Mrs [Tomas] in the District Court of Samoa at Apia.
2.The Application noted in the paragraph above was dismissed on 12 June 2010, and on 22 September 2010, an Application to appeal that dismissal was filed in the Supreme Court of Samoa. That appeal was listed for mention on 18 October 2010. Mrs [Murray] sought to strike out that application to set aside on 2 March 2011 but that application was dismissed.
3.The matter was in the meantime listed for interim hearing in this Court before Benjamin J on 17,19 and 22 March 2010 and an interim judgment was delivered. An application made by Mrs [Murray] for leave to reargue the application to permanently stay or dismiss the proceedings was dismissed. Orders were made to the effect that Mr and Mrs [Tomas] had equal shared parental responsibility for [S] and for time to be spent with Mrs [Murray]. No finding was made in respect of whether or not Mr and Mrs [Murray] were adoptive parents (see footnote 1 of the judgment at page 1 of His Honour’s reasons). It is noteworthy that Mr and Mrs [Tomas] sought an adjournment on 17 March 2010 but Mrs [Murray] opposed the adjournment and sought to have the matter heard in order to finalise the matter (see paragraph 17 of Mrs [Murray’s] submissions).
4.Mrs [Murray] appealed Benjamin J’s decision to continue to hear the proceedings on the ground of apprehended bias and succeeded in the Full Court in having Benjamin J recused from further hearing the proceedings on that ground. Judgment was delivered confirming this on 15 March 2011. Mrs [Murray] did not appeal Benjamin J’s dismissal of her application to re-argue jurisdiction. In fact, the Full Court requested that the proceedings be listed for final hearing with all possible expedition.
5.The proceedings have been listed for final hearing on 11 July 2011 for five days.
B.This Application in a Case
6.The Application in a Case which is listed for interim hearing on 7 June 2011 seeks to re-agitate the issue of jurisdiction. It is assumed from Mrs [Murray’s] Counsel’s submissions that it is Order 3 which is listed for hearing on that day. That order refers to Orders 2-5 of the Amended Response to Initiating Application. There are two sets of such orders within that Amended Response, but the general tenor of Mrs [Murray’s] submissions is that she wants a stay or dismissal on a final basis because she says that the Family Court of Australia has no jurisdiction.
C.Estoppel
7.Having failed twice already to convince this Court that it lacks jurisdiction, Mrs [Murray] is making a third attempt about one month before the final hearing which was set down with a direction for expedition by the Full Court.
8.This time, she submits that the proceedings need to be characterised as either adoption proceedings or parenting proceedings by this Court in order for it to determine whether it has jurisdiction, asks the Court to make a finding of illegality, and to exclude itself from hearing the matter on the basis of that finding.
9.Mrs [Murray]says on the one hand that the [Tomases] knew and deliberately circumvented their obligations under Australian and international laws whilst deliberately refraining from bringing forward evidence about her own role in these alleged conspiracies in which she was clearly complicit.
10.On the other hand, Mrs [Murray] says that she should be permitted to re-agitate the question of jurisdiction on the basis of the same obligations that she says should have been obvious to the [Tomases]. She offers no explanation to the Court of why she did not bring its attention to such issues when arguing her two previous failed attacks on the Court’s jurisdiction. If such laws are so crucial as to cause a child to be immediately removed from this jurisdiction and her home as Mrs [Murray] says, then they should have been argued at the appropriate juncture, when she previously attacked the Court’s jurisdiction.
11.There have been two determinations by judicial officers properly exercising Commonwealth power that this Court has jurisdiction. Both decisions were made contrary to previous applications by Mrs [Murray] as to jurisdiction. But not only this, the very issue which she now seeks to agitate (being whether Mr and Mrs [Tomas] are adoptive parents) was already subject to a finding by the Full Court which has not been appealed:
“At least until April 2009, pursuant to orders made in Samoa, they were and can be described as having been the adoptive parents of the child.”
12.Further, although Benjamin J was recused by the Full Court, his findings as to jurisdiction have never been appealed. The only appeals of his orders were in relation to bias and findings of credit made against the mother. The question of jurisdiction should have been appealed to the Full Court, rather than brought by this Application in a Case.
13.Even if there had been no adjudication of the jurisdictional issue by this Court upon her applications, it was the obligation of Mrs [Murray] to bring forward all arguments in support of those applications at the time when they were made. Because she did not do so, she is now stopped from re-agitating them. Accordingly, an Anshun estoppel operates, as do judgment estoppel and issue estoppel. Equitable principles of estoppel also operate: the delay has been prejudicial to the [Tomases], who have prepared for the final hearing listed before the Court.
D.The Proper Characterisation of these Proceedings
(a)These proceedings are not a prosecution
14.The way in which Mrs [Murray] has approached this Application in a Case is more akin to a quasi-prosecution of the [Tomases] under international law and the Adoption Act 2000 (NSW) which she herself concedes is outside the jurisdiction of this Court. At the nub of her submission that jurisdiction is vitiated is a claim that the [Tomases] deliberately and knowingly subverted Australian law. Such serious accusations deserve due process and are best left in the hands of authorities who are properly authorised to investigate such claims. They are beyond the purview of a one-day interim hearing in parenting proceedings and the Court should not be put upon to take an inquisitorial role without proper guidance from a prosecuting authority. The Court can refer persons as may be relevant to those authorities should it see the need to without its jurisdiction being extinguished. It does so regularly in respect of other obligations (for example, regarding Centrelink payments or income tax).
15.Mrs [Murray] has issued a request for Answers to Specific Questions and has sought the intervention at the eleventh hour from government authorities without actually instituting any proceedings under the Adoption Act in the appropriate forum. None of this vitiates the Family Court’s jurisdiction, and there is insufficient proof even to support the specious claim that the Family Court would be upholding an illegality at this late stage. It is not fair to ask this Court to adjudicate on such matters which are outside its jurisdiction, and so the only fair question for this Court becomes whether or not the proceedings fall under the Family Law Act.
(b)These proceedings are not adoption proceedings
16.Mrs [Murray] has apparently abandoned her argument (and rightly so) that the Family Court of Australia is a clearly inappropriate forum. She now seeks to challenge jurisdiction by a last-ditch attempt before final hearing to re-characterise the proceedings as “adoption proceedings”, but has not defined those within her submissions. Her attempt to re-characterise the proceedings is unilateral and Mr and Mrs [Tomas] have never suggested that the proceedings are other than parenting proceedings.
17.Firstly, we should examine possible definitions of what Mrs [Murray] calls “adoption proceedings” over which this Court has jurisdiction by looking at the provisions of the Family Law Act. Firstly, Mr and Mrs [Tomas] have not sought a declaration from this Court that they be declared “prescribed adopting parents” for the purposes of s60G of the Family Law Act and they make no application at all under that section. Proceedings under that section are of a different character than these, but if they had been brought, then [S’s] best interests would be the determining factor pursuant to s60G(2) at final hearing, and jurisdiction would be retained by this Court.
18.As for possible definitions of “adoption proceedings” which are outside the Court’s jurisdiction, Mrs [Murray] has in her submissions identified the Adoption Act 2000 (NSW). The term “adoption proceedings” is not defined in the dictionary of that Act. Mrs [Murray] has incorrectly submitted that in “adoption proceedings” (presumably under the Adoption Act), [S’s] best interests are not of paramount concern. The very first object of that Act as is listed at s3(a) is “to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice.”
(c)These proceedings are parenting proceedings
19.Mrs [Murray’s] Counsel has correctly identified Mr and Mrs [Tomas’s] application as having been brought under s65C. All parties are agreed that Mr and Mrs [Tomas] were interested in caring for [S] from when they first learned of her impending birth. There can be no doubt that they are interested in her care, welfare and development for the purposes of s65C. All parties are agreed that Mrs [Murray] brought [S] to Australia from Samoa following an adoption recognised under Samoan law, and that Mr and Mrs [Tomas] would assume care of [S] as though they were her parents. Crucially, [S] has been in their care since she was 20 months old and there are no concerns raised about their parenting of her.
20.Mrs [Murray] does not explain in her submissions where the inconsistency is between s65C and ss116 or 117 of the Adoption Act. One deals with parenting proceedings brought relevantly by persons concerned with the care, welfare and development of [S], whereas the other would need to be examined in the Supreme Court of New South Wales in the context of a prosecution by an authority duly authorised.
21.The practical effect of an order pursuant to an application brought under s65C in the present context could be that [S] remains in Australia because it is deemed to be in her best interests to do so in the Family Court’s discretionary judgment. It could also be that the Court orders her return to Samoa with her birth mother. However, neither of those potentialities removes the Court’s jurisdiction under the Family Law Act, and nor can they undermine s109 of the Constitution. In other words, s65C does not make ss116 and 117 inoperative.
22.Importantly, after due investigation and process by an investigating authority, Mrs [Murray] might also be found liable to prosecution as she was clearly complicit in the adoption. However, the possibility of that prosecution does not remove this Court’s jurisdiction any more than does the possibility of a prosecution against the [Tomases].
23.Put simply, the [Tomases] are not asking the Family Court to “ratify” their adoption as Mrs [Murray] puts it in her submissions: they are asking it to make parenting orders because they are persons concerned with the care, welfare and development of [S]. If the Court has concerns about how [S] came to be in the jurisdiction, then it can refer Mrs [Murray], Mr and Mrs [Tomas] and any other persons involved to the appropriate authorities after final hearing, but it still has jurisdiction to determine the parenting orders.
E.Part of the Family Court’s Role is to uphold the law, but if it engages in an inquisitorial role, then it must afford due process, and it can only do so within its own jurisdiction
24.Mrs [Murray] apparently seeks to have Mr and Mrs [Tomas] interrogated at the interim hearing on the basis of questions asked in certain Requests for Answers to Specific Questions without herself being investigated. She asks the Family Court to find that Mr and Mrs [Tomas] have deliberately circumvented Australian laws on the basis of very weak circumstantial evidence, regardless of the fact that the Family Court has no jurisdiction to make such a determination.
25.Mrs [Murray] wants the Court to find that her complicity in the adoption had a certain character, and she hides behind submissions and an affidavit of her solicitor in doing so. She will not put an affidavit forward which discloses her own role in the adoption. Paragraph 51,53 and 68 of Mrs [Murray’s] submissions comprise baseless accusations of a criminal nature and ignore the many possible factual permutations which could be argued before the Court in accordance with due process at final hearing.
26.As for paragraph 69, these are submissions which Mrs [Murray] might be entitled to make in her submissions after close of evidence at final hearing. If the Court agreed at final hearing with those submissions, then it might make adverse findings of credit against the [Tomases]. It might also find that as a result of the accusations having been substantiated, the [Tomases] were not fit to be parents of [S] in accordance with the Family Law Act. However, allegations of wrongdoing by one party against another do not vitiate jurisdiction and cannot result in a stay or dismissal of an application brought pursuant to s65C.
27.Mrs [Murray] says that the Court can find at an interim hearing that [S] should be immediately uprooted from her home of some two years’ standing and sent to Samoa. She relies on the totally irrelevant and inappropriate doctrine of restitutio in integrum, a tortious doctrine in relation to damages, in requesting [S’s] immediate return.
28.[S] arrived in Australia via a New Zealand Passport and New Zealand Citizenship on application from relatives who had agreed with her biological mother to adopt her under Samoan law. Her biological mother sent photographs of [S] to Mrs [Tomas] so that these processes could be effected. It cannot be inferred that there was any deliberate plan by the [Tomases] to circumvent Australian law merely by the fact of an application being made to New Zealand. Even if [S] had come here entirely illegally, the Family Court would still have jurisdiction to apply the Family Law Act in her best interests.
F.Why the Family Law Act applies notwithstanding the points raised at paragraph 58 of Mrs [Murray’s] submissions
29.It is not possible for Mrs [Murray] to contend on the basis of the Initiating Application that the [Tomases] had an “intention” to bring “adoption proceedings”, whatever “adoption proceedings” might mean. She has previously acceded to the jurisdiction of this Court, including pushing for a final hearing in response to the [Tomas’s] adjournment application in March 2010. The reasons why these parenting proceedings cannot be re-characterised as a matter of law have already been set out in these submissions.
30.The procedural reasons why Mrs [Murray] cannot succeed will be set out later in these submissions. Once again, the Family Court is not being asked to validate the Samoan adoption arrangement – the Samoan Supreme Court is going to determine this on 15 August 2011. The Family Court can make whatever findings it deems appropriate after hearing the evidence at the five-day hearing. It need not find whether the adoption is valid. It can make any referrals it deems appropriate.
31.The Family Court can, as is properly conceded in paragraph 58(e) of Mrs [Murray’s] submissions, that Mr and Mrs [Tomas] are allowed to bring an application pursuant to s65C. It is a matter for the legislature, and not for the Family Court, whether the situation should be changed.
G.What should be done with the Application in a Case
32.There is no foundation in Family Law or in the law concerning “adoption proceedings” for the sudden removal of [S] from her primary carers on 7 June 2011. There are parenting proceedings on foot which have been brought pursuant to s65C, and they should be heard on their merits with all parties being afforded due process.
33.The Application in a Case should be dismissed because Mrs [Murray] is estopped from re-agitating the issue of jurisdiction, particularly at this very late stage in the proceedings. Alternatively, the Application in a Case should be adjourned until final hearing if “adoption proceedings” are to be commenced by Community Services. The Court’s jurisdiction to make orders under the Family Law Act has not been vitiated by Mrs [Murray’s] allegations and contentions. The Court is fully empowered to hear the parenting proceedings in the usual fashion, with all its usual discretions and powers, and it can make any referrals about the parties to the prosecuting authority after hearing the evidence at final hearing if it sees fit to do so.
The written submissions for the intervener are:
Submissions of the Director-General, Department of Family and Community Services
1. On 5 May 2011 the Family Court of Australia invited the Director-General, Department of Family and Community Services (the Director-General”) to intervene in proceedings commenced in the Parramatta Registry of the Court by [Mr and Mrs Tomas] (“the applicants”) seeking parenting orders in respect of [S Murray], also known as [S Tomas], born [in] June 2007 (“the child”).
2. The Director-General has accepted the invitation of the Court to intervene pursuant to section 91B of the Family Law Act 1976 (“the Act”) in the role of amicus curiae.
Background
3. The evidence appears to disclose that the child, who was born in Samoa, was the subject of a Samoan cultural adoption arrangement between the birth parents, [Mr and Mrs Murray] (“the respondents”) and the applicants who are related to them. The Samoan District Court made an ex parte adoption order in favour of the applicants pursuant to this arrangement on 24 January 2008.
4. At all material times the applicants lived in Australia, although from time to time they visited Samoa and they have property there.
5. The applicants obtained New Zealand citizenship for the child.
6. In early 2009 the respondent mother and the child travelled to Australia where the respondent mother indicated that she no longer agreed to the adoption arrangement. On 13 March 2009 the applicants purchased a return ticket for the mother and child for 15 March 2009. On the same day they applied for order in the Federal Magistrates Court restraining the mother from removing the child from the jurisdiction and the child’s name was placed on the airport watchlist. When the mother and child attempted to leave Australia the child was prevented from going and the mother left without her. The application was then withdrawn.
7. On 14 April 2009 the Samoan District Court discharged the adoption order.
8. On 14 November 2009 the respondent mother returned to Australia and served the discharge of the order on the applicants.
9. The current proceedings were filed by the applicants on 1 December 2009. The respondents argue that the Family Court has no jurisdiction as the proceedings are adoption proceedings and an abuse of process
10. On 9 February 2010 the applicants filed an application to set aside the discharge of adoption order in the District Court of Samoa. That application is listed for hearing in August 2011.
Jurisdiction of the Family Court of Australia
11. The original jurisdiction of the Family Court is relevantly set out in section 31 of the Family Law Act 1976 (“the Act”).
Original jurisdiction of Family Court
(1) Jurisdiction is conferred on the Family Court with respect to:
(a) matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and …
(d) matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.12. The Family Law Act 1976 provides in section 65C as follows:
Who may apply for a parenting orderA parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.13. Section 69C provides:
Who may institute proceedings(1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.
(2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:
(a) either or both of the child's parents; or
(b) the child; or
(c) a grandparent of the child; or
(d) any other person concerned with the care, welfare or development of the child.14. Section 69E of the Act provides:
Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
"relevant day" , in relation to proceedings, means:(a)if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b)in any other case--the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
15. It would appear from these provisions that the Family Court does have jurisdiction in this matter on the uncontested facts before the court, as any person concerned with the care of the child can bring proceedings[33] for parenting orders or other orders[34], the child was present in Australia on the day the application was filed[35] and the applicants are ordinarily resident in Australia[36],[37].
[33] s.65C(c)
[34] s.69C(2)(c)
[35] s.69E(1)(a)
[36] s.69E(1)(d)
[37] The question of whether or not an individual is resident in Australia is a question of fact: see Norman v Norman (No 3) (1969) 16 FLR 231 .
The term “ordinarily resident” is to be distinguished from occasional or temporary residence and connotes residence in a place with some degree of continuity apart from accidental or temporary absences e.g. Judd v Judd (1957) 75 WN (NSW) 147
Should the Family Court Decline to Exercise Jurisdiction
16. The High Court in Voth v Manildra Flour Mills Pty Ltd[38] held that an Australian court should only decline jurisdiction if it is a clearly inappropriate forum.
[38] [1990] HCA 55; (1990) 171 CLR 538
….
Note: the submissions in relation to forum have been deleted because the applicant expressly does not seek to argue that the Family Court is a clearly inappropriate forum.
…
Abuse of Process22. The respondents argue that the proceedings are adoption proceedings in disguise, brought for improper purposes after a series of dishonest acts and are thus an abuse of process.
23. This argument raises a number of legal issues:
(a) Is the respondent’s evidence admissible?
(b) Are the proceedings adoption proceedings?
(c) If they were adoption proceedings or akin to adoption proceedings would the Family Court nevertheless have jurisdiction?Evidence
24. The Director-General has not been briefed with the application filed by the applicants or any of the evidence filed in its support, but has been supplied with two affidavits sworn by the solicitor for the respondent on 2 May 2011 and 20 May 2011.
25. The affidavit of 2 May 2011 is in fact a submission by a solicitor and the Court may consider such an affidavit to be inadmissible as evidence in contested proceedings.
26. The affidavit of 20 May 2011, if relied on by the respondents would require the solicitor for the respondents to cease to act as the solicitor on the record[39].
[39] Solicitors Rules - 19 - Practitioner a material witness in clients case
27. Section 69ZT of the Family Law Act provides that the rules of evidence do not generally apply in child related matters. In particular the rules relating to hearsay and admissions do not apply[40]. However subsection (3) provides:
[40] S.69ZC(1)(c)
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
28. The affidavit of 20 May 2011 contains what appears to be a transcript of a telephone conversation which is hearsay[41]. Although hearsay is generally admissible in interlocutory proceedings[42], s 83 of the Evidence Act 1995 prevents the use of hearsay material as an admission against third parties. In this affidavit sworn by a solicitor:
[41] Evidence Act1995 s.59
[42] Evidence Act1995 s.75
(a) The telephone conversation contains material which might constitute an admission of a criminal offence either in Australia or elsewhere by a third party;
(b) No warnings were given to the person making the admission and that person was not told that the conversation was being recorded (presumably not by any recording device) for use in court proceedings.
29. Pursuant to s 69ZC (3) of the Act the Court could consider whether the circumstances are exceptional and whether the evidence has any probative value.
Adoption
30. The Family Court does not have jurisdiction (pursuant to the cross vesting Acts of the Commonwealth and State[43] or otherwise) to make orders in relation to the adoption of children generally.
[43] Re Wakim [1999] HCA27; 198 CLR 511
31. Section 60G provides that the Family Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
32. Section 4 defines “prescribed adopting parent” as follows:
"prescribed adopting parent" , in relation to a child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
33. It would seem clear that the Family Court has no jurisdiction with respect to adoption of the child in this application.
34. The Family Court has recently considered the applicability of the Adoption Act 2000 NSW (“the Adoption Act”). Sacrinity v Wolodzko[44] involved an apparently private adoption arrangement involving a child of Pacific Islander parents who was given to other relatives in NSW to care for. There was no dispute about the child’s living arrangements and the Court decided it was in the child’s best interests that parenting orders be made as the child was neither an Australian citizen nor permanent resident. In that case the Director-General was invited to intervene, but declined to do so and the Court formed the view[45] that “the Director-General is not troubled by the proposed arrangements for the child are not inconsistent with the Adoption Act.”
[44] [2010] FamCA 1258
[45] ibid at [47]
35. Part 2 of Chapter 5 of the Adoption Act provides for the recognition in NSW of intercountry adoptions made in accordance with the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption[46] and adoptions granted in certain prescribed overseas jurisdictions.
[46] Schedule 1 to the Adoption Act 2000 NSW
36. Samoa is not a party to the Convention and Australia does not automatically recognise an adoption order made there. Pursuant to section 117 of the Adoption Act an application may be brought in the Supreme Court of NSW by a party to an adoption order made in a non-Convention Country for a declaration that the foreign adoption complies with the Adoption Act and is recognised in NSW.
37. Foreign adoptions which do not comply are not recognised in NSW and have no legal effect.
38. Section 116 of the Adoption Act relevantly provides:
116 Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions
(1) 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 at which 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.
(2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:
(a) the adoption is in accordance with and has not been rescinded under the law of that country, and …
(5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).
39. To every adult person the law ascribes a domicile and that domicile remains his or her fixed domicile until a new and different domicile takes its place[47]. The Domicile Act 1982 applies whenever a domicile has to be determined.
[47] Bell v Kennedy (1868) LR 1 Sc & Div 307
40. A person acquires a domicile of choice in a country if he or she, being of independent capacity, has voluntarily chosen a new place of residence and is lawfully present with the intention of remaining in that country indefinitely. The elements of physical presence and intention must occur at the same time. Section 10 of the Domicile Act provides that the necessary intention is “the intention to make his home indefinitely in that country”. The existing domicile, whether acquired by choice or by dependence, continues until a new domicile is acquired[48].
[48] Domicile Act 1982 s.7
41. Australia does have criteria for accepting ad hoc requests for intercountry adoptions from a country with which Australia does not have an existing intercountry adoption program. Ad hoc requests will only be accepted if, inter alia, the adoption would satisfy the Hague Convention standards and requirements, international law and principles and the laws of the overseas country[49].
[49] Intercountry Adoption Ad Hoc Requests – Policy and procedures p.2
42. It would appear from the submissions of the respondent that the applicants were not resident in Samoa for 12 months prior to the making of the adoption order. It is unknown whether they are domiciled in Australia or Samoa, or elsewhere.
43. It appears that the original adoption order was rescinded by the Samoan Court, but that that decision is currently under appeal.
44. It appears that the applicants would not be successful in an application under the Adoption Act.
International Conventions
45. Samoa is a signatory to the Convention on the Rights of the Child, but is not a signatory to the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption, the Hague Convention on the Civil Aspects of International Child Abduction, or the Protocol to Prevent Suppress and Punish Trafficking in Persons, especially Women and Children.
46. Australia is a signatory to these Conventions and thus has obligations, independently of any obligations assumed by Samoa, to prevent the abduction and trafficking of children, to protect children within the jurisdiction and to preserve the rights and interests of children.
47. If the Court were to accept evidence that the child had been retained in Australia in the circumstances put forward by the respondents, the Court might take a view similar to that expressed in In the Marriage of Van Rensburg and Paquay[50].
[50] (1993) 16 Fam LR 680
Immigration
48. The respondents say that the child entered Australia pursuant to a sub Class 444 visa which was obtained fraudulently. The purpose of this visa is to allow non-New Zealand citizens to travel to and live in Australia with a New Zealand citizen family member who is a Special Category visa holder[51]. The Special Category (subclass 444) visa is a temporary visa automatically granted to New Zealand citizens who arrive in Australia who do not hold a permanent visa.
49. Section 42(3) of the Migration Act 1958 (Cwth) and Migration Regulation 2.06 provide that New Zealand citizens may travel to Australia without a visa.
50. The Department of Immigration and Citizenship has published a fact sheet “Fact Sheet 36 – Adopting a Child from Overseas”. That fact sheet states, inter alia:
An Adoption (subclass 102) visa is for a child who has been formally adopted by an Australian citizen or a person who is permanently resident in Australia. To be eligible for an Adoption visa, the overseas adoption must have been arranged through an Australian state or territory adoption authority. There is no provision to grant a visa to a child outside Australia who has been adopted under private arrangements, unless the adoptive parent has been genuinely resident overseas for 12 months at the time of the visa application.An adoption visa can only be applied for by children outside Australia.
[51] DIAC website
Conclusion
51. The Director-General, acting as amicus curiae, submits that the Family Court has jurisdiction to hear a parenting application in respect of the child.
52. The Family Court may decline to exercise its jurisdiction if it is satisfied that the Family Court is an inappropriate forum.
53. In making such a decision the Court would consider:
(a) the best interests of the child;
(b) whether the applicants are entitled to insist upon the exercise of the Court’s jurisdiction, which has been regularly invoked;
(c) whether there has been an abuse of the process of the court, particularly considering the issues concerning adoption and migration;
(d) whether the proceedings are otherwise oppressive or vexatious;
(e) whether another forum has jurisdiction and would be a more appropriate forum
(f) where the balance of convenience lies;(g) is it fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties?
54. If the Family Court were concerned about the possible conflicts which might arise as a result of the hearing of the appeal from the decision to rescind the adoption order in Samoa, the Court could adjourn the proceedings listed for final hearing in July until a date after that appeal. Such an adjournment would allow the Court to consider the Samoan decision when making its own decision and thus obviate the need for yet further court hearings.
Learned counsel for the intervener did not seek to make submissions as to the ultimate finding of the Court but repeated that the Court clearly has jurisdiction over the child. It is submitted that the Court could decline to make orders if it found the proceedings to be an abuse of process but that such a finding would await a resolution of the various issues of fact.
estoppel
The issues before me have been raised earlier in these proceedings. The following facts come from the Court record and I do not believe them to be controversial.
On 1 December 2009 the respondents filed the Initiating Application that commenced the substantive proceedings. It was first listed before the Court on 21 December 2009.
On 16 December 2009 the applicant filed a Response to the Initiating Application. On 21 December 2009 the applicant filed an Amended Response to the Initiating Application. The same Amended Response that is before me.
On 22 December 2009 Benjamin J made various orders including interim parenting orders. He also ordered:
1.The first respondent’s application for permanent stay of these proceedings is dismissed.
2.…
That order was not the subject of an appeal.
On 2 June 2010 Benjamin J made various orders including:
1.The application by the mother for leave to re-argue an application to permanently stay or dismiss these proceedings is dismissed.
2.….
By application filed on 14 October 2010, the applicant applied for an extension of time within which to appeal against interim parenting orders made by Justice Benjamin on 2 June 2010.
On 14 December 2010 Benjamin J made various orders including:
…
2.The application that I disqualify myself from further hearing of these proceedings be dismissed.
3.….
By application filed on 2 March 2011, the applicant applied for an extension of time within which to appeal against the decision of Benjamin J made on 14 December 2010.
The applications of 14 October 2010 and of 2 March 2011 came before the Full Court on 14 March 2011 and the following orders were made on that day:
Orders in Appeal No. EA 22 of 2011
1.That, the time for filing of the Appellant’s Notice of Appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be extended to 4 pm on 2 March 2011.
2.That the Appellant’s Draft Notice of Appeal dated 2 March 2011 is deemed to have been filed within time.
3.That the appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be allowed.
4.That Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be set aside.
5.That Justice Benjamin be recused from further hearing proceedings between the parties to this appeal.
6.That the Court grants to the Appellant mother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the application and appeal.
7.That the Court grants to the respondents costs certificates pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondents in respect of the costs incurred by them in relation to the application and appeal.
8.Request that the final hearing of the proceedings be fixed for trial before a Judge in the Parramatta Registry with all possible expedition.
9.That the parties be granted liberty to apply for further directions, by telephone, on 72 hours notice.
10.That a Family Report be prepared as soon as possible to address the usual matters and such other matters as the Manager, Child Dispute Services considers appropriate.
IT IS NOTED:
11.That Justice Johnston has, without being asked, recused himself from hearing further proceedings between the parties.
ORDERS in Appeal No. EA 130 of 2010
1.That leave be granted to the Applicant for an extension of time within which to appeal against interim parenting Orders made by Justice Benjamin on 2 June 2010 to withdraw such Application.
2.That the Application for an extension of time filed 14 October 2010 be dismissed.
3.That there be no orders as to costs.
In response to Order 8 above, the proceedings have been fixed for final hearing before me over 5 days commencing on 11 July 2011.
I do not have before me the Application filed in the Full Court on 14 October 2010 and therefore do not know whether, in addition to the interim parenting orders, that application sought leave to appeal against the dismissal of the application for leave to re-argue an application to permanently stay or dismiss these proceedings. If not then there was no attempt to challenge that order. Insofar as the applicant did seek leave to appeal against the order of 2 June 2010 dismissing her application for leave to re-argue an application to permanently stay or dismiss these proceedings, she withdrew that application and it was dismissed.
Discussion
It seems to me that the first question to be addressed is whether to again entertain a summary application already dealt with on two occasions, in circumstances whereby those decisions were not challenged.
At a practical level, the summary application for dismissal which is before me was itself dismissed on 22 December 2009. The orders were sought as interim or interlocutory orders set out in an Amended Response filed 21 December 2009. Thus there is no outstanding application.
Similar orders are also sought by way of final relief.
The Family Court of Australia is a superior court of record. It is a Court of limited jurisdiction and has the authority to make decisions as to the existence of its jurisdiction in a matter. Its orders in relation thereto are final and binding unless and until set aside on appeal or pursuant to s 75(v) of the Constitution.[52]
[52] See Re Macks; Ex parte Saint (2000) 204 CLR 158[ in relation to the powers of the Federal Court of Australia
Putting aside the fate of the formal application for summary dismissal, the issues raised in that application have been heard and determined. The application was heard and was dismissed on 22 December 2009 and an application to re-argue those issues was heard was on 2 June 2010 was refused. There was no appeal filed in relation to either decision.
It is a nice question as to whether the doctrine of res judicata applies in these circumstances:
In Reid & Lynch [2010] FamCAFC 184; (2010) FLC 93-448 the Full Court (per O’Ryan J) said:
228.The rule as to res judicata is that, where an action has been brought and judgment has been entered in that action, no other proceedings may be maintained on the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J dissenting, cited with approval in Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aitkin JJ and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510 – 11 per Deane, Toohey and Gaudron JJ. If the cause of action was held to exist so that judgment was given upon it, it is said to be merged in the judgment and no longer has an independent existence. The notion of res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation. Res judicata is a defence to a claim in a legal proceeding which, if made, is a complete bar to the claim. There is no discretion in a court to allow the second action to proceed where the cause of action is merged in the judgment of the prior proceedings.
As I said during the course of submissions, it cannot be that the decision of Benjamin J as to jurisdiction could bind me in respect of the final hearing. However, without leave of the Court, the same summary dismissal application cannot be made after it has been dismissed.
In those circumstances I will not again entertain that application. I cannot dismiss the application again, I will simply make no order.
The facts beg a number of questions. If, as is asserted before me, the applicant is able to bring repeated applications in terms of the ‘orders sought” numbered 2 and 4 in her Amended Response of 21 December 2009, why was Benjamin J asked to grant her leave to re-argue those matters in the proceedings concluded by him on 2 June 2010?
More fundamentally, what was the utility in an appeal only against the decision of Benjamin J not to recuse himself, when it is argued that, however constituted, this Court either has no jurisdiction to hear the substantive proceedings or should not exercise its jurisdiction?
Finally, if the outcomes of previous hearings on these issues are to be unchallenged and yet ignored, what is the utility of a further summary disposition of those issues? Presumably, if I was to dismiss the summary application, a similar application could be pressed the next day.
As to the argument that this Court has no jurisdiction and yet could make an effective order that the child be returned to the mother – it is submitted that the doctrine of restitutio in integrum has a place in these circumstances. I was taken to no authority for this proposition. In her submissions learned counsel for the respondents argued that the doctrine had no application in these circumstances. I could find a reference to that term in a handful of cases but not in parenting proceedings. The instances I saw involved obiter in respect of the restoration of a party to a contract that was later set aside, to the position that applied prior to the contract; the right of a successful appellant to interest on moneys restored on appeal; and in the context of orders under s 106B and the earlier provision whereby transactions could be set aside. I could find no reference to the principle at all in parenting proceedings, let alone where the Court found it had no jurisdiction.
However, as to the position where the Court has jurisdiction but declines to exercise it there is the decision of the Full Court in In the Marriage of Van Rensburg and Paquay (1993) 16 Fam LR 680. In that case, despite a finding that the Family Court of Western Australia was a clearly inappropriate forum, orders were made by that Court to facilitate the repatriation of the subject children to South Africa. Although the circumstances of the two courts are different (the Family Court of Western Australia being a State court) it may be that consequential orders can be made in those circumstances.
However, I express no concluded view on this issue. It may be that in the substantive proceedings the argument for such an order will remain and I will be taken to appropriate authority.
I will resist the temptation to say anything about the merits of the application for summary dismissal. To do so would be to give consideration to an application which has already been determined. It may also lead to a situation whereby it could be argued that I have formed a view about issues in the substantive proceedings.
conclusion
I am asked to permanently stay or dismiss the proceeding commenced by the Initiating Application filed 1 December 2009. The same application was dismissed on 22 December 2009. Leave to re-open the same argument was refused on 2 June 2010. I will make no order.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan .
Associate:
Date: 10 June 2011 (revised, as noted above, 28 June 2011).
A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court.
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