Cloud v State of Queensland [2002] QCA 458

SUPREME COURT OF QUEENSLAND

CITATION: Cloud v State of Queensland [2002] QCA 458

PARTIES: MICHAEL CHARLES CLOUD (plaintiff/appellant) v STATE OF QUEENSLAND (defendant/respondent)

FILE NO/S: Appeal No 331 of 2002 Appeal No 332 of 2002 SC No 771 of 2001 SC No 75 of 2001 SC No 841 of 2001

DIVISION: Court of Appeal

PROCEEDINGS: General Civil Appeals

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 1 November 2002

DELIVERED AT: Brisbane

HEARING DATE: 19 July 2002

JUDGES: Davies and Jerrard JJA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeals dismissed with costs

CATCHWORDS: CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – EXTERNAL AFFAIRS (CONSTITUTION, s 51(xxix)) – IMPLEMENTATION OF TREATIES AND CONVENTIONS – GENERALLY – where appellant contends that the actions of the respondent were in breach of its obligations under the United Nations Convention on the Rights of the Child – where the provisions of the Convention have not been made part of domestic law in Australia – whether the Convention has a special significance in Australian law / CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – DISCRIMINATION BETWEEN RESIDENTS OF DIFFERENT STATES (CONSTITUTION s 117) – GENERALLY – where appellant contends that because the New South Wales adoption legislation allows a person in the appellant’s position the right to object to an adoption and the Queensland legislation does not, s 117 of the Constitution is contravened – where the absence of this right in Queensland is indiscriminately denied to all fathers who are not married to the child’s mother irrespective of the State in which the father has resided – whether Queensland legislation contravenes s 117 of the Constitution / FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – ADOPTION – EFFECT OF ORDER – where appellant contends that officers of the Department of Family Services and Aboriginal and Islander Affairs, did not act in an honest and responsible manner, having regard to the best interests of the child – where appellant contends that the officers were selective in the information they put before the Family Court – where it was shown that officers of the Department provided information in the Family Court which favoured making an adoption order and which overlooked the possibility of improving interactions between the child and his father, the appellant – whether these circumstances give the appellant a right of action against the State of Queensland / TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – ABUSE OF PROCESS – where appellant contends that there was a duty on respondent to give different information to witnesses – where such complaints should have been raised at the Family Court trial or on the appeal from that court’s decision – where appellant has attempted to reopen matters which have already been litigated upon – whether this amounts to an abuse of process of this court / FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – ADOPTION – APPLICATION FOR ORDER – CONSENT TO ORDER AND DISPENSING WITH CONSENT – where appellant seeks a declaration that the relevant consent for the adoption was obtained by improper means – where this application is akin to one under s 16(1)(b) of the Adoption Act 1964 (Qld) – where the Director of the Department of Family Services and Aboriginal and Islander Affairs knew of the appellant’s opposition to the adoption when he made the order – where this order was one in which the welfare and interests of the child were the paramount consideration for the Director – whether declaration sought by the appellant should be granted / TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – ABUSE OF PROCESS – where appellant has suffered a deep sense of loss – where adoption occurred in accordance with Queensland laws – where learned judge below found the appellant’s claim to be vexatious and oppressive and an abuse of process – whether the order below staying the action should be upheld for these reasons / Commonwealth Constitution, s 51(xxxvii), s 117 Family Law Act 1975 (Cth), s 60E, s 60H, s 91B Family Law Regulations 1984 (Cth), reg 8, reg 12B Human Rights and Equal Opportunity Commission Act 1986 (Cth), Sch 3 Adoption of Children Act 1964 (Qld), s 7, s 10, s 16, s 19, s 22, s 23, s 41 Adoption of Children Act 1965 (NSW), s 26 Childrens’ Services Act 1965 (Qld), s 47, s 55, s 48, s 103 Commonwealth Powers (Family Law – Children) Act 1990 (Qld) Status of Children Act 1978 (Qld), s 3 / B v B (1996) 21 Fam LR 676, considered Cabassi v Vila (1940) 64 CLR 130, applied Hoye v Neely; Department of Community Services (1992) FLC 92-310, considered In the Marriage of Newling & Mole (1987) 11 Fam LR 974*,*considered Ousley v R (1997-98) 192 CLR 69, considered Re H (an infant) [1982] Qd R 364, followed Sullivan v Moody (2001) 183 ALR 404, followed

COUNSEL: The appellant appeared on his own behalf / PA Keane QC, with K Buxton, for the respondent

SOLICITORS: The appellant appeared on his own behalf / C W Lohe, Crown Solicitor for the respondent

1. DAVIES JA: I have read the reasons for judgment of Jerrard JA and agree that each of these appeals should be dismissed with costs. The orders made by Cullinane J were, in my opinion, correct, generally for the reasons which his Honour gave.

2. JERRARD JA: On 6 November 1995 the then Director-General of the Department of Family Services and Aboriginal and Islander Affairs (“the Department”), made an order under the Adoption of Children Act 1964 (Qld) (“the Adoption Act”)¹, for the adoption of the child Julian Darryl Mark Mackenzie. That child had been born in New South Wales on 22 July 1994, and brought to Queensland in late September 1994 by his mother, who then placed the child in foster care in Queensland. The plaintiff/appellant, the child’s father, thereafter unsuccessfully applied to the Family Court of Australia for orders granting him the sole custody and guardianship of the child. The adoption order was made after both that application to the Family Court was dismissed², and an appeal on the merits by the plaintiff/appellant to the Full Court of the Family Court of Australia had also been dismissed.

3. In June and November 2001 the plaintiff/appellant filed claims in the Cairns and Townsville Registries respectively of this Court, for damages in the “Cairns” claim; and damages, together with a declaration that the relevant consents to adoption had been obtained by improper means, in the “Townsville” claim. The gist of the claim in the Cairns Registry was that inaccurate or inadequate information or evidence had been given by officers of the Department in the Family Court proceedings, and the plaintiff/appellant had suffered terribly from the loss of his child when the adoption order, consequent on the orders of the Family Court, was made. The gist of the claim in the Townsville Registry was that the Director-General was either obliged to refuse, or should have refused, to make an adoption order knowing of the plaintiff/appellant’s objection to it. On 14 December 2001 Cullinane J made orders staying both proceedings, principally on the grounds that they were an abuse of process, vexatious, and disclosed no arguable cause of action. The plaintiff/appellant appeals those orders.

Care and Protection of the Director

4. Some more background history is relevant to an understanding of the issues raised in this appeal. The appeal record describes the plaintiff/appellant as having been in a de facto relationship with the child’s mother from September 1993 until 1 February 1994. After the child’s birth in July 1994, and the mother’s placing of the child in foster care in Queensland, he was fostered by a Mrs Fairbrother from about October 1994 until at least the trial in the Family Court of Australia in early September 1995.

5. A supplementary statement of facts was received from the respondent to this appeal on 31 July 2002, in response to a direction of this Court on the hearing of the appeal on 19 July 2002. Its contents were not disputed by the appellant, who made a written reply to it, raising other issues. That statement informed that on 4 October 1994 the mother voluntarily placed the child into the Department’s care. That information, and the fact that the child was in foster care, means that very likely what had occurred was that the child’s mother had applied pursuant to s 47(1) of the Childrens’ Services Act 1965 (Qld) (then in force) to admit the child to the care and protection of the Director of the Department.

6. On such an application the Director may by writing declare such a child to be admitted to the Director’s care and protection³, and it is by that means, not just the mother’s application, that a child relevantly comes into the Director’s care. Upon such a declaration being made, the child is taken into the Director’s custody⁴ and the guardianship of such a child vests in the Director for as long as that declaration is in force.⁵ Such a declaration is in force until, inter alia, the expiration of one month after the parent making the application, or a person who was the guardian of the child before it was made, applies to the Director to undertake themselves the care and protection of the child.⁶ Finally, that legislation provided that when a child was admitted to the care and protection of the Director by the Director’s declaration, the Director might make use of such facilities and services as might be made available by “any person approved by the Director”; and s 103(1) specifically provided that the Director could place a child in care in the charge of foster parents.

7. Those were the provisions of the “child protection” legislation then in force. The child’s placement in the Director’s care probably means that from 4 October onwards the Director was the guardian of the child. This is because there is no evidence of any application having been made to withdraw the child from the Director’s care, and thus to remove him from foster care. Instead, the plaintiff/appellant himself describes an agreement between the two parents entered into “in or about mid 1995” in the proceedings in the Family Court of Australia, whereby the parties agreed by an undertaking to that Court to allow the child to remain in the “temporary custody” of the Director. That description by the appellant of that undertaking is entirely consistent with the described provisions of the 1965. What this means is that as at 11 October 1994 it is probable that neither parent was the guardian of the child, guardianship having passed to the Director by reason of s 55(1).

Consent by a Guardian

9. The Adoption Act provides the circumstances in which a child present in Queensland may be adopted by prospective adopting parents who are resident or domicile in Queensland.⁷ Section 10 of the Adoption Act provides that for all (relevant) purposes the welfare and interests of the child concerned shall be regarded as the paramount consideration. Section 7(1) provides that a child may be adopted in Queensland by means of an order for the adoption of that child made by (at that time) the Director of the Department. Section 19(1) provides that the (then) Director shall not make an order for the adoption of the child unless consent to that adoption has been given “by the appropriate person or persons”. Section 19(2) describes those, in the case of a child whose parents were married to each other at the time of the child’s conception or who have since married each other, as being “every person who is a parent or guardian of the child”. Section 19(3) provides that, in the case of a child whose parents were not married to each other at the time of the child’s conception and who have not since married each other, the appropriate person “is every person who is the mother or guardian of the child”.

10. Section 19(7) provides that “despite s 23”, if under the (then) Childrens’ Services Act 1965 the (then) Director has custody or guardianship of a child, it is unnecessary for that Director’s consent to the child’s adoption to be evidenced by an instrument of consent. Section 23 provides that consent for the purposes of s 19 shall be evidenced by an instrument of consent substantially in accordance with the prescribed form. Section 22 provides for the revocation of consent before the expiration of 30 days from the date on which the instrument of consent was signed, or before the day on which the order for the adoption is made, which ever is the earlier.

11. The plaintiff/appellant never married the child’s mother. The appellant argues that the Director ought to have recognised that the appellant was a guardian of the child to whom s 19(3) applied.

12. The Director’s conduct in not obtaining the father’s consent, and in proceeding to an adoption of the child without that consent, was in accordance with a decision of Connolly J of this court in Re H [1982] Qd R 364. In that case His Honour held that the effect of s 3(1) of the Status of Children Act 1978 (Qld) was that:

“The father of an illegitimate child is his guardian” (page 367 par A).

Nevertheless, His Honour also held that on an examination of the legislative history of s 19(3) of the Adoption Act, the word “guardian” in that section was used to describe a person who was a guardian of the child by reason other than ties of parenthood (at page 368B). The section remained unamended after that judgment. I respectfully observe that s 19(7) is consistent with the word “guardian” in s 19(3) being using in the sense described by Connolly J, as s 19(7) necessarily implies the Director can consent under the Adoption Act to the adoption of a child in the Director’s guardianship by reason of the Children’s Services Act. What guides the Director is s 10 of the Adoption Act.

13. Mullane J reached a different conclusion to that of Connolly J when construing a similar provision, in s 26(3) of the Adoption of Children Act 1965 (NSW), in Hoye v Neely (1992) FLC 92-310, holding that the provisions of that legislation did require the consent of the unmarried father to the child’s adoption. The thoughtful judgment of Mullane J considers a number of decisions on the issue, but I respectfully prefer and adopt the construction of Connolly J. I consider that construction accords with the difference between the requirement in s 19(2) that the persons whose consent are necessary are “every person who is a parent or guardian of the child”, and the requirement in s 19(3) of the consent of each person who is “the mother or guardian” of a child. That latter requirement no doubt reflects the reality that sometimes the identity of the father will be unknown.

14. It is likely that in any event guardianship had passed to the Director on or about 4 October 1994, by reason of the Director’s election. The closeness of the dates 4 October and 11 October 1994 tends to disguise the important fact that passing guardianship to the Director, on the Director’s acceptance of an application to take the child into care and protection, is no empty gesture. This tiny baby needed care and his mother did not provide it. The evidence described later herein and given before the Family Court suggested his father could not provide it. The person who would give care to the child needed a legal status in the child’s life, so that decisions about the child’s welfare could be made.

15. The appeal record contains the appellant’s description of the child’s mother inviting the appellant to consider a reconciliation of their relationship in late November 1994. Apparently that did not happen, and on 30 January 1995 the father filed his applications in the Family Court for orders that he have sole custody and guardianship of the child. On 27 February 1995 Jordan J of that Court ordered:

● That the appellant have supervised access with the child for two hours each week;

● That paternity testing procedures be carried out (these established the appellant is the child’s father);

● That the child be separately represented in the proceedings in the Family Court.

It was following those orders that the parties filed their undertakings to allow the child to remain in the temporary custody of the Director. Either parent would otherwise have had the right under s 48(b) of the Childrens’ Services Act, assuming guardianship had passed to the Director, to apply to the Director, to undertake the care and protection of the child. The appellant could have done so because he was a guardian of the child before the child entered the Director’s guardianship, assuming that occurred on or about 4 October 1994. (I consider the term “the guardian” in s 48(b) of the Childrens’ Services Act was used in a wider sense than the sense in which it was used in s 19(3) of the Adoption Act.)

Jurisdiction in the Family Court

16. The jurisdiction of the Family Court of Australia to make orders such as those sought by the father, in respect of children other than children of a marriage, derived at the time of those proceedings from the combination of s 60E(2) and (4) of the Family Law Act 1975 (Cth), and the Commonwealth Powers (Family Law – Children) Act 1990 (Qld). That latter Act referred to the Commonwealth Parliament, pursuant to s 51(xxxvii) of the Constitution, the matter of legislative power with respect to the custody and guardianship of, and access to, children.

17. Section 60H of the Family Law Act, as then in force, provided that a court having jurisdiction under that Act must not make an order under it in relation to a child under the guardianship or in the custody of a person under a child welfare law, unless either one of two conditions was satisfied. The first was that the order was expressed to come into effect when the child ceased to be under such guardianship or such custody; and the second was that the written consent of the child welfare officer of the relevant State had been obtained, to the institution or continuation of the proceedings. The effect of Regulation 12B(2) of the Family Law Regulations 1984 (Cth) in force at all relevant times was that both the Adoption Act and Childrens’ Services Act of Queensland were child welfare laws within the meaning of s 60H. The appeal record demonstrates that the Director became an intervenor by leave granted in the proceedings in the Family Court initiated by the appellant’s application filed 30 January 1995. Those proceedings thereafter continued to judgment and on appeal, and the Director appeared by the Crown Solicitor in person in the trial proceedings, and by counsel in the appeal to the Full Court of the Family Court. It is therefore safe and only appropriate to assume that the proceedings were regular;⁸ and that the written consent of the Director was obtained to the continuation of the proceedings in which the Director was intervening and appearing. I am again assuming that the child was in the Director’s guardianship. If not, the Family Court had no fetter on its jurisdiction.

Proceedings in the Family Court

18. The appeal record demonstrates that the child’s mother continued to have a degree of ambivalence about the matters critical to his future. On 15 August 1995 she filed her own application in the Family Court for orders that she have the sole custody and guardianship of the child. She withdrew that application at or about the time of the commencement of the actual trial, and in the trial before Barry J supported the argument of the child’s legal representative, that it was in his best interests that he be adopted. The Crown Solicitor, the child’s representative, and the mother all expressed opposition to the father being given custody, and the Crown Solicitor suggested (A.R. 281) that an order could be made giving guardianship to the “Department”. The child’s legal representative submitted that the Director should be appointed sole guardian of the child by order the Family Court, submitting that that order would ensure that an adoption could occur without there being any issue of the father’s necessary consent pursuant to s 19(3) of the Adoption Act (record 284).

19. Barry J ordered on 5 September 1999 that the father’s application be dismissed, he be declared the father of the child, and the Director of the Department be appointed the child’s sole guardian. On 21 September 1995 the father filed an appeal to the Full Court of the Family Court, and on 16 October 1995 that appeal was heard and dismissed. The grounds of appeal included that the judge had placed insufficient weight on evidence that the father was progressing, and trying to progress, in his interactions with the child.

20. That appeal was very much one on the merits of the matter. The evidence led before the learned judge of the Family Court, and the findings on those, are relevant to the appellant’s claims in his action in the Cairns Registry of this Court. That evidence included evidence from a Dr Francis Varghese, a psychiatrist who had examined the parents on instructions from the child’s legal representative. The report provided to that representative by Dr Varghese included a description of the appellant being highly circumstantial and highly tangential in his speech, to the extent that the appellant frequently lost the train of his thought; and the appellant had very major problems in communication and relationships with others. Dr Varghese described the appellant as displaying magical thinking and primitive reasoning processes that could be termed psychotic, and he thought the appellant (who was then known as Mark Ashton) had a very severe and profound personality disorder, which the psychiatrist characterised as being schizo-typal. He assessed the appellant as having paranoid, obsessional, and narcissistic traits, to a significant degree; and thought he would be unable to look after a child on his own. In the psychiatrist’s view, the issue of the appellant having sole custody of the child was out of the question, and the psychiatrist recommended that the child be placed in a secure family environment through adoption.

“Mark showed absolutely no affection towards Julian and seemed to be interested in him as a prospective partner.”

She had earlier sworn that:

“Mark stated to me:

“I need him for a research partner to know how to live an extended life, because in 400 years all these will be possible.”

Mrs Fairbrother also described how:

“After all these months of visits Mark is still incapable of holding the baby in his arms and still has not spoken to him once. There have been 9 visits for a total and 17 and a half hours”.

She had also deposed that:

“I had suggested to Mark that he comfort Julian, but he was quite incapable of doing so. Every time Mark picks Julian up he puts him away from him and never puts him facing him.”

22. The learned judge also had an affidavit from a “team leader” within the Department, who prepared a report pursuant to s 91B of the Family Law Act for the legal representative of the child. The judge described her report as an insightful and accurate document. It recorded that all Departmental workers involved in supervising family contact between the appellant and the child had reported that the appellant had difficulty in engaging the child in play activities, that the appellant appeared reluctant to physically interact with the child, and had required direction to hold or cuddle the child when the baby was upset or distressed. That report writer had also described what she called the transient life style of the appellant (at that stage of his life), and that the appellant had no apparent knowledge of the emotional and developmental needs of the baby. The judge understood her evidence as showing that the appellant had shown “precious little improvement” in his relationship with the child over numerous months during which access had taken place.

23. The judge also heard evidence which he accepted of the matters that troubled a senior Adoptions officer from within the Department. These included that since filing his application to the Family Court for orders for sole custody, the appellant had advertised himself in a newspaper for the purposes of prostitution, and had appeared in court twice that year and been convicted on two assault charges, of which one involved a female and the other a publican.

24. The learned judge came to the conclusion that he was not satisfied that the appellant had any parenting skills which would allow him to cater for the need of an infant, and nor was he satisfied that the appellant had the ability to develop those skills. The judge had received evidence in a further report, described as a family report, which the judge described as a “sound fair minded report”. It included within it the observation that the appellant had not demonstrated to its author that he had an ability to learn or “take on board feedback”, and had not behaved at all like someone wanting to know how to live with and raise a young child. It appears unlikely the family report was written by an officer of the Department⁹. On those findings the judge dismissed the appellant’s application, and came to the further view that the order that would most benefit the child, by providing stability and security, would be an order for adoption. The judge held that there was no benefit to the child in maintaining a relationship with the appellant when balanced against the benefits of a “closed adoption order”, that being one in which the adopting parents were unknown to the appellant.

25. There was something of a consistent thread in the observations of the physiatrist, the foster mother, the author of the s 91B report, and the author of the family report. The judge placed weight on the reports of the psychiatrist and the author of the family report. He also described Mrs Fairbrother, who was not in any sense an employee of the Department, as “the salt of the earth”, and a person whom he considered honest and sensitive, whose evidence he had no hesitation in accepting. The author of the s 91B report would have been an employee of the Department, as was the senior Adoptions officer whose evidence the trial judge accepted. The point about all this is that the judge was not reliant simply on evidence of Departmental officers who had supervised the access sessions between the father and son. The child’s legal representatives were private practitioners entirely independent of the Department, and Dr Varghese was then in a private practice as a psychiatrist.

The Claim in the Cairns Registry

31. His claim in the Cairns Registry of this court was begun before Callinan J made that striking out order. In the “Cairns” claim he sues only the State of Queensland. He describes his claim as being for “damages for breach of trust, misrepresentation, defamation, negligence, illegality, suffering, and losses by impositions having enduring affect”. Summarised, his pleadings allege that the employees of the Department, including its administrators and “welfare and adoption agents”, had a duty (to him) to be honest and trustworthy when engaged in writing reports about the supervised access sessions between himself and the child, a duty to note carefully and observe actual events and interactions that occurred, a duty of care to the child to evaluate the circumstances of the child’s natural family, and a duty to consider the child’s legal rights. His pleadings allege that the reports prepared by the Department employees did not sufficiently include evidence on the “positive side of what the child stood to gain by having more access with the plaintiff”. He pleaded that the defendant (the Department) “exploited its monopoly over every aspect of gathering evidence” at access sessions, and merely gathered evidence that was “good for having the child adopted out”. He also pleads that the defendant State of Queensland “was negligent to the rights of the child” as defined in specified articles in UNCROC, and pleads that the conduct of the State of Queensland contravened s 117 of the Constitution.

32. He pleads that the State of Queensland was negligent in not adequately instructing its supervisors to inquire and observe on what the child had to gain from having access with him, and by not ensuring that the staff had effective means to record evidence of what occurred at access sessions. He also pleads the Department misrepresented to the child’s mother, to other potential witnesses, and to the Family Court, the effect of what was there to be observed by Departmental officers overseeing the contact between himself and the child. I think this is a reasonable summary of the pleadings.

33. Section 117 of the Constitution requires that a subject of the Queen resident in any State not be subject in any other State to any disability or discrimination which would not be equally applicable to that subject if the person were a subject of the Queen resident in that other State. The fact that the law of New South Wales gives a person in the appellant’s position the right to object to the adoption of his child, whereas the law of Queensland does not, is not a contravention of s 117. The right not given to him in Queensland is a right indiscriminately denied to the fathers of all children proposed for adoption, where those fathers are not married to or have never been married to the child’s mother, irrespective of the State in which the father has resided.

34. I agree with the view of the learned judge below that the matters raising asserted constitutional issues are in substance the same as those already aired before Callinan J, and that they have no merit. The provisions of the UNCROC are not made part of the domestic law of Australia, either by reason by their having been ratified by Australia in December 1990 nor by reason of their being a schedule to the 1986 (Cth).

“At once, then, it can be seen that there is an intersection with the law of defamation, which resolves the competing interests of the parties through well developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an all together different basis. It would allow recovery of damages for publishing statements to the discredit of the person where the law of defamation would not.”¹²

41. In any event, the time and place to complain about Departmental officers supplying inaccurate information or giving unbalanced accounts in evidence was in the trial in the Family Court in September 1995, and on the appeal from that court’s decision. As the learned judge below in the instant matter observed, there must be finality to litigation. It is simply far too late now to attempt to reopen, in these proceedings, matters going to the credit of some of the witnesses called in those proceedings, and to the weight which should have been given to the evidence of others of those witnesses. As the learned judge held below, the attempt to reopen them now under the guise of what is really a pleading that there was a duty to give different or other information to others or other evidence, is an abuse of the process of this court.

42. There is a further point raised by the respondents. This is that in the decision in Cabassi v Vila (1940) 64 CLR 130, where the High Court affirmed as part of the common law of Australia the principle that no civil action lies in respect of evidence, even if false and malicious, given by witnesses in the course of a judicial proceeding. It was held this rule prevented an unsuccessful litigant bringing an action for conspiracy against witnesses whom the defeated party alleged had conspired together to given the false evidence which resulted in the case being lost by him. The respondents argue that all the more, the plaintiff/appellant in this matter ought not to be allowed to complain about evidence from Departmental officers which was negligently or carelessly inaccurate, when he cannot sue them where their evidence was deliberately dishonest. The rationale for the rule in Cabassi v Vila is that the proper remedy, for the party whose action is lost because of dishonestly given evidence, is to invoke the provisions of the criminal law which punish perjury, or by action for contempt of court. What the appellant really wants to do to complain here about what he says is unfair evidence the Department’s officers gave, and unfair information they supplied out of court to other persons. As shown, there is binding authority from the High Court that as a matter of public policy a litigant cannot take either step by a claim as pleaded here. It follows that for all these reasons the judgment of the learned trial judge staying the appellant’s claim filed in the Cairns Registry should be upheld.

The Townsville Registry Action

43. Turning to the appeal against the order staying his claim filed in the Townsville Registry of this court, that in part seeks damages, and in part is an application for a declaration which is akin to application under s 16(1)(b) of the Adoption Act. That section allows the (as now styled) Chief Executive of the Department to apply to this court for an order discharging an adoption order, which order the court may make if satisfied that the consent for the purposes of the adoption originally made was obtained by improper means. The court shall not make such an order if it appears that making it would be prejudicial to the welfare and interests of the child.

44. Mr Cloud simply asks for a declaration that the relevant consent for the adoption was obtained by improper means. The damages sought are for “negligence, loss of chance, and suffering by excluding the plaintiff from adoption consent rights in the process of adopting the plaintiff’s son.” The statement of claim filed pleads that the defendant, State of Queensland (really, the Director of the Department) had a duty of care to be careful to not adopt a child unless full regard was had to the views of “the parties”, and that the plaintiff should have been regarded as the child’s guardian within the meaning of the Adoption Act. Mr Cloud also pleads that the Director was negligent in continuing to classify the child as available for a closed adoption, when knowing when the mother had had alternating stances as to whether the child should be adopted or not, and when knowing the father and his parents opposed the adoption and had initiated legal action in respect of the child.

45. The appellant is not correct in his argument that he was a guardian of the child within the meaning of s 19(3) of the Adoption Act. In any event, even if he were otherwise the guardian, that very likely changed around the time the child entered the Director’s care. The mother was a party in the proceedings in the Family Court and argued in those for an adoption order. By the time the order was made, hers seems to have been a determined consent, not obtained by any impropriety.

46. The fact that the Director had the child adopted knowing of the father’s opposition is not inconsistent with that order being one in which the welfare and interests of the child were the paramount consideration for the Director. Mr Cloud’s sense of loss pleaded by him is entirely understandable; but the adoption which occurred was in accordance with the laws of this State. Unusually, it was proceeded by a full-blown hearing before a judge, in which the public purse provided the child with legal representation, some of the Department’s officers were cross examined, and a judge heard evidence from a psychiatrist, at least one if not two social workers, the child’s parents, his foster mother, and other witnesses. Four parties appeared altogether, and submissions were made by all as to what were the orders in the child’s best interests. That judge had extensive experience in determining by order the future lives of children, and expressed the clear view that an adoption order would be in child’s best interest. There was then an appeal on the merits. If the rights recognised in children by UNCROC, which Convention appears as Schedule 3 to the 1986 (Cth), did apply as part of the State law of Queensland, it is difficult to see how any of those recognised rights could be better protected or advanced than by what actually happened before the final decision was taken by the Director to adopt this child.

Footnotes

1. The order would have been made under s 7(1) of the Adoption Act. ↩

2. The Family Court of Australia made orders in the father’s application for sole guardianship and custody of the child both dismissing that application and appointing the Director General of the Department sole guardian of the child. ↩

3. s 47(2) ↩

4. s 47(2A) ↩

5. s 55(1) ↩

6. s 48(b) ↩

7. Adoption Act s 7A(1) ↩

8. Ousley v R (1997-1998) 192 CLR 69; Gossett v Howard (1845) 10 QB 411 at 452-33. ↩

9. See AR 115, wherein Barry J records that its author was a counsellor approved to write such reports pursuant to reg 8 of the Family Law Regulations. ↩

10. See Bradley v Commonwealth (1973) 128 CLR 557 at 582 and Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 224; Kioa v West (1984-85) 159 CLR 550 at 570. ↩

11. The Full Court of the Family Court suggested in B v B (1996) 21 Fam LR 676 that although not part of Australian domestic law, UNCROC may have “special significance” in Australian law [par 10.20]. ↩