AF & F v Department of Child Safety [2008] QChC 1

CHILDREN’S COURT OF QUEENSLAND CITATION: AF & F v Department of Child Safety [2008] QChC 1 PARTIES: AF First Appellant and F Second Appellant and Kim Harper Respondent FILE NO/S: 11/08 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Ipswich DELIVERED ON: 12 December 2008 DELIVERED AT: Ipswich HEARING DATE: 14 November 2008 JUDGE: Richards DCJ ORDER: Appeal Dismissed CATCHWORDS: Child protection – where there is an adoption from a foreign country – where the country is a non- convention country – whether the adopting parents have standing to contest child protection proceedings COUNSEL: Mr S Kissick for the appellants Mr P Munro for the Dept of child Safety SOLICITORS: McMillan Kelly and Thomas for the Appellants Ms B Wilkie, Legal Aid Queensland, as separate representative for the children Crown Law for the respondent and the Department of Child Safety -- 1 of 11 -- 2 [1] F and AF are Samoan born residents of Queensland. They are Australian nationals and hold Australian passports. They have two children, V born on 22 June 1993 and M born on 4 October 1995. [2] On 26 March 2003 AF and F adopted three Samoan children in Samoa. The children were C born on 9 March 1989, K born on 27 March 1991 and A born on 10 November 1992. K and A were issued with New Zealand passports on 13 January 2005 and came to live with F and AF. [3] On 10 May 2005, F and AF adopted a further two Samoan children in Samoa namely a female infant called KK born on 23 October 1996 who became known as VF and FF born on 20 April 1993 and thereafter known as L. These two children were issued with New Zealand passports on 9 November 2006 under the name of “F” and moved to Australia to live with the Appellants. All children were noted to be New Zealand nationals and are present in the country under a s444 Visa which allows free movement between New Zealand citizens and Australian citizens between the two countries. [4] On 12 May 2004 a child protection notification was made in relation to M and V. Upon interview with officers from the Department of Child Safety, the father acknowledged using physical discipline, namely a belt, on the children and no further action was taken. [5] On 17 March 2008, a further child protection notification was recorded in relation to the family and in particular in relation to the adopted children. Again the allegations were that excessive physical discipline being used. -- 2 of 11 -- 3 [6] As a result of the notification an application was made by the department in relation to all children under the care of the appellants and on 15 May 2008 a temporary custody order was granted on that date. [7] Following investigations into these allegations, the adopted children made disclosures of physical abuse. The children’s claims were corroborated by witnesses from within the family and neighbours who noted that the children particularly A and L had been subject to harsh and excessive discipline. The discipline included being beaten with fists and objects such as a Vicks jar, pieces of timber, golf clubs, stones and brooms on multiple occasions. L was seen at the Mater Hospital and examined and it was noted that he had old rib fractures and that he may need an operation on his ear. There are further allegations that A, VF, L and K would be asked to wake at 3am to work at the family cleaning businesses before school and that they were told not to talk about things that happened at home. [8] As a result of the disclosures, AF has been charged with fifteen charges of common assault and one of grievous bodily harm and F has been charged with one charge of common assault. The complainants in the criminal proceedings are the adopted children. It should be noted that a condition of the appellant’s bail is that the two appellants have no contact directly or indirectly with the four adopted children unless under the supervision of the department. [9] On 17 April 2008, and as a result of being taken into care, K and A were placed with T and TS who are cousins of AF. On 11 August 2008 that placement broke down due to problems within the Samoan community. They were taken by in JLS and VLS who are related to AF. JLS is F’s niece. They were taken then to see AF and F and K decided to stay living with them. -- 3 of 11 -- 4 [10] On 18 August 2008 A began living with Mercy Family Services. [11] V and M are currently living with the JLS and VLS. They went into their care on 17 April 2008. L and VF were taken into the care of their maternal uncle and aunt N and JA on the same day. However, because of fighting between JLS and VLS and the N and JA family, the children were taken from them and put into foster care. Whilst they were with the foster parents JLS would often pick the children up from school and not take them back until very late at night. As a result of this persistent behaviour, the foster care placing broke down and M and V went back to JLS and VLS on 4 June 2008. VF and L were taken into foster care on 16 May 2008 but they ran away from that foster care and went back to N and JA on 4 June. [12] On 30 June 2008, the Children’s Court of Ipswich decided that temporary custody of the children be given to the Chief Executive. [13] A notice of appeal was lodged by A and AF on 23 July 2008 on the grounds that: 1. the magistrate failed to give any or any appropriate weight to all of the evidence before him in the proceedings 2. It was not open to the magistrate on the facie evidence before him to be satisfied that the interim may grant him temporary custody would achieve protection of the children sought or was in the best interest of the children. 3. The magistrate’s decision to impose the interim order granting temporary custody to the chief executive was against the weight of evidence before him in the proceedings. [14] The appellant seeks to prove that there was no basis for making of an order granting temporary custody of the children M and V or alternatively if such a basis exists the appropriate order is an order granting temporary custody to JLS and VLS. Further they argue that the appropriate order in relation to the remaining children is an order granting temporary custody of the children to JLS and VLS. -- 4 of 11 -- 5 [15] A preliminary matter arises in this application as to whether the appellants have standing in relation to the adopted children. Section 117 of the Child Protection Act 1999 provides: “(1) The following persons may appeal to the appellate court against a decision on an application for a temporary assessment order for a child— (a) the applicant; (b) the child; (c) the child’s parents. (2) A party to the proceeding for an application for a court assessment order or child protection order for a child may appeal to the appellate court against a decision on the application. (3) In this section— parent, of a child, means each of the following persons— (a) the child’s mother or father; (b) a person in whose favour a residence order or contact order for the child is in operation under the Family Law Act 1975 (Cwlth); (c) a person, other than the chief executive, having custody or guardianship of the child under a law of the State or another State; (d) if the child is in a person’s custody or guardianship under this Act— (i) the child’s mother or father; and (ii) anyone else who would be the child’s parent under paragraph (b) or (c) if the child were not in the person’s custody or guardianship under this Act.” [16] Section 28 of the Adoption of Children Act 1964 provides: “(1) For the purposes of the laws of Queensland but subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order— (a) the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock; and…” [17] In my opinion this section would have the effect of placing the adopted parent in the position of a parent within the meaning of subsection (a) of the Child Protection Act as the child’s mother or father, however, in this case the children have been adopted -- 5 of 11 -- 6 in Samoa not in Queensland and therefore the provisions of s28 of the Adoption of Children Act 1964 cannot apply. [18] Section 37 of the Adoption of Children Act 1964 provides that a New Zealand adoption has the same effect as an adoption order made in Queensland under the Act however once again the adoption in this case is not an adoption under New Zealand law. Under s 37(a) an adoption from a convention country is recognised as if it were an adoption made under the Act however Samoa is a not a convention country. [19] Section 38 allows recognition of adoptions granted in non-convention countries namely: “(1) For the purposes of the laws of Queensland, the adoption of a person in a non-convention country, being an adoption to which this section applies, has, so long as it has not been rescinded under the law of that country, the same effect as an adoption order under this Act. (2) This section applies to an adoption in a non-convention country if— (a) the adoption was effective according to the law of that country; and (b) at the time at which the legal steps that resulted in the adoption were commenced, the adopter, or each of the adopters, was resident or domiciled in that country and had been so resident or domiciled for not less than 12 months; and (c) in consequence of the adoption, the adopter or adopters had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the adopted person; and (d) under the law of that country the adopter or adopters were, by the adoption, placed generally in relation to the adopted person in the position of a parent or parents…” [20] In this case the appellants were living in Queensland at the time of the adoption and therefore they do not come within section 38 of the Adoption of Children Act. -- 6 of 11 -- 7 [21] Mr Kissick for the appellants has argued that the adoption has been recognised in New Zealand and that the Commonwealth Government has allowed the children to enter the country under a s444 visa and therefore the Commonwealth has recognised the adoption by the appellants. In support of this argument he points to the Citizenship(Western Samoa) Act 1982 (NZ), and the Adoption of Children Act 1964 (NZ). [22] The evidence before the court is that the children are New Zealand Nationals and they have been issued New Zealand passports in their adopted names. In order to obtain the New Zealand passports the adoption papers must have been submitted to the New Zealand government and then New Zealand must have recognised the adoption as being a valid one in order to issue the passports. The power to recognise the adoption seems to come from Section 17 of the Adoption Act 1955 (New Zealand) which states: “(1) Where a person has been adopted (whether before or after the commencement of this section) in any place outside New Zealand, according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all of New Zealand enactments and laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect. “(2) Subsection (1) shall apply to an adoption in any place outside New Zealand, if- (a) the adoption is legally valid according to the law of that place; (b) in consequence of the adoption, the adopted parents or any adopted parent had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to law of that place, a right superior to that of any natural parent of the adopted person in respect of the role of providing day-to-day care for the person; (c) either – (i) the adoption order was made by any court or judicial or public authority whatsoever of a Commonwealth country, or of the United -- 7 of 11 -- 8 States of America, or of any State or territory of the United States of America, or of any other country which the Governor-General by an order in Council that is at the time being enforced, has directed to be deemed to be referred to in this subparagraph; or…” [23] Western Samoa is a Commonwealth country and it has to be assumed that if a passport was issued to the children as New Zealand nationals then the adoption of the children has been recognised by the New Zealand authorities. [24] Whilst, accepting the argument that the adoptions must be recognised under New Zealand law and that New Zealand adoptions are recognised under Queensland law, the fact of recognition of a foreign adoption in New Zealand does not elevate the adoption to the same status as a New Zealand adoption. The adoption of the children remains an adoption of children from a non convention foreign country by Australian citizens and as such the adoptions need to be ratified by court order before they are recognised in Australian law. [25] During the course of argument Mr Kissick also sought to raise the deeming provisions of the Status of Children Act 1978. Those provisions raise a rebuttable presumption of parentage in certain circumstances. In this case even if a presumption exists, the court is now appraised of the facts of the claim of parental rights and must assess the claim according to the facts as they are now known. [26] In my view the adoption of the children under the Samoan law is not recognised in the provisions of the Child Protection Act 1999 or under the Adoption of Children Act 1964 and therefore the appellants do not have standing to bring this appeal in relation to the children K, A, L and VF. [27] The Separate representative has also raised arguments about the lack of proof of parentage of the children M and V but the presumption of parentage must apply to -- 8 of 11 -- 9 them in light of the appellant’s sworn evidence that they are the parents of the children and until the contrary is proved the appellants are presumed to be their biological parents. [28] Although in my view the appellants do not have standing to bring this appeal I propose to nonetheless discuss the substantive merits of the appeal. [29] Turning then to the substantive argument of the appeal namely that the magistrate did not have sufficient material upon which to make a temporary assessment order. Subsection (1) of that section provides that a magistrate may make a temporary assessment order for a child only if the magistrate is satisfied: “(a) Investigation is necessary to assess whether the child is a child needing protection; (b) The investigation cannot be properly carried out unless the order is made…” [30] A child in need of protection is defined as: “a child who: (a) has suffered harm, is suffering harm or is at unacceptable risk for suffering harm; (b) does not have a parent able and willing to protect the child from the harm.” (See s10, Child Protection Act 1999.) [31] Harm is defined to include “any detrimental effect to a significant nature on a child’s physical, psychological and emotional wellbeing.” (See s9 of the above Act.) [32] The primary consideration for making a court order is the welfare and best interests of the child. [33] These children were taken into care as a result of allegations of physical harm being made and possible emotional harm in relation to the four adopted children. There have been previous allegations and admissions of violence in relation to the children -- 9 of 11 -- 10 M and V although on this occasion there were no allegations made by them. There is also suggestion that the parents have tried to instruct the children not to talk about what happens in their home. [34] The allegations in relation to the four adopted children are very serious involving significant physical harm and also exploitation in the form of getting them to work extended early morning hours before attending school. The disclosures in relation to the biological children occurred before the adopted children were present in the house. It seems that the attention of the parents in relation to excessive discipline has now turned from the natural children to the adopted children. [35] The concept of whether there is an unacceptable risk that there would be significant harm to the children was noted in the High Court decision of In the marriage of M&M (1988) 166 CLR 69 where it was stated: “To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose that child to an unacceptable risk of sexual abuse.” [36] Each area of abuse must be considered on the basis of whether the current and future risk is unacceptable and that requires a consideration of the child’s exposure to actual and potential risk. [37] In this case, in relation to the adopted children, there is a very clear and present risk that they will be physically abused if they are returned to the appellants. The submission that they should be taken to another house where they can all be together loses its force when consideration is given to the fact that the appellants would prefer the two children that are currently in the house of JLS and VLS to be returned to them and that one of the children is already back living with them. -- 10 of 11 -- 11 Therefore, even if the children were moved they would not be together in any case. Further, there is evidence before the court that JLS and VLS do not believe the allegations made by the children and that they think they are lying. JLS and VLS have also demonstrated an unwillingness to cooperate with the department by their demonstrated oppositional attitude towards the foster care placement when V and M were removed from their care. In my view it cannot be said that they would be suitable people to care for the adopted children as their ability to protect the children from potential danger and abuse must necessarily be compromised by their belief that the children have not been abused. [38] Further, until a proper assessment has been made of the home environment it would be inappropriate to return the biological children to the residence of the appellants. As I understand it, the appellants are currently in contact with their natural children on a regular basis and it is in the best interests of the children to ensure that their safety is continuing in the residence where they currently are quite settled. There is evidence that the children have been told not to discuss events in the home to people who are not within the family and that the children have been excessively disciplined in the past. [39] In my view there is no merit in this appeal and the appeal should be dismissed. ORDER Appeal dismissed -- 11 of 11 --