Crowe v Musch; ex parte Musch [1995] QCA 165 [1996] 1 Qd R 463

8 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 49 of 1994 (O.S.C. No. 18 of 1993) Brisbane [Crowe v. Musch] R.A. CROWE v. DANIEL STEPHEN MUSCH Ex parte: DANIEL STEPHEN MUSCH McPherson JA Davies JA Dowsett J Judgment delivered 12/05/1995 Separate Reasons for Judgment, concurring as to order. APPLICATION DISCHARGED CATCHWORDS: Adoption of Children Act, 1964 - ss.39AA, 39B, 39D - Interpretation - a birth parent or adopted person may make an objection to contact under the Act at any time, even after initial contact. Counsel: P J Alcorn for Applicant R Martin for Respondent Solicitors: Legal Aid Office for Applicant Director of Prosecutions for Respondent Hearing Date: 2 December, 1994 -- 1 of 12 -- IN THE COURT OF APPEAL [1995] QCA 165 SUPREME COURT OF QUEENSLAND Appeal No. 49 of 1994 Brisbane Before Davies J.A. McPherson J.A. Dowsett J. [Crowe v. Musch; ex parte Musch] BETWEEN: R. A. CROWE AND: DANIEL STEPHEN MUSCH Ex parte DANIEL STEPHEN MUSCH REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered the 12th day of May 1995 This appeal involves the construction of Part 4A of the Adoption of Children Act 1964. The sections referred to below are all in that Part. The question arises in this way. The appellant is a young man who is an adopted person within the meaning of the Act. He sought and obtained from the Director, pursuant to s.39B, information about his birth parent, within the meaning of the Act, the respondent who is his natural mother. He then made contact with her. This occurred in September 1991. Thereafter the appellant spoke to the respondent on a number of occasions, some in person and some by telephone. Then on 7 November 1991 the respondent purported to make an objection to contact with the appellant pursuant to s.39AA(2). That objection came to the knowledge of the -- 2 of 12 -- 2 appellant. Notwithstanding that, the appellant telephoned the respondent on two occasions thereafter. The question before the learned Magistrate and before this Court is whether, by making the telephone calls referred to after he had knowledge of the purported objection, the appellant committed an offence against s.39D. That section relevantly provides: " (1) Any adopted person, ... who has received information in respect of a person under section 39B shall not - (a) contact or attempt to contact that person; ... if that person has, to the knowledge of, the first mentioned person, ... made an objection under section 39AA that is in force in relation to the first mentioned person, ... " Sub-section (2) also makes it an offence for an adopted person to intimidate or harass that other person. A breach of s.39D may result in a sentence of imprisonment for two years. The term "contact" is also used in s.39AA. The meaning of that term in the context of Part 4A is central to the resolution of the above question. Subject to some qualifications, an adopted person such as the appellant is entitled to have the Director disclose to him certain information about his birth parent. That information may be generally described as being of two kinds; information identifying the adopted person's birth parent by name (at the date of consent to adoption) and date of birth; and information which may lead to the location of that birth parent, the name and address of that birth parent last known to the Director. None of this information may be -- 3 of 12 -- 3 disclosed if there is in force an objection under s39AA(2)(b); and information of the second kind may be disclosed only if there is no such objection and the birth parent has so requested in writing. These provisions are to be found in s.39B(1). Section 39AA(2) provides: "A birth parent of an adopted person, ... may - (a) object to contact being made with the [birth parent] by a specified person or class of persons; or (b) object to contact being made with the [birth parent] by a specified person or class of persons and also object to the disclosure of information under s.39B to the person or those persons." But for the context in which s.39AA(2) appears the phrase "contact being made", which appears in both paras.(a) and (b), could be used in the sense of establishing contact, that is making the initial contact; or getting in touch, with the implication that it may occur more than once. Although the latter is the more popular meaning, in the context of Part 4A it is difficult to see how the phrase in s.39AA(2)(b) could have been intended to encompass more than the establishment of contact. The objection in that paragraph covers both contact and the means by which the birth parent may be identified and located in order to establish that contact. There would be little point in objecting to disclosure of particulars of the birth parent which s.39B(1) envisages if contact with the birth parent had already been established. The purpose of s.39B(1) appears to be relevantly to enable an adopted person to identify and locate his or her birth parent. -- 4 of 12 -- 4 If, as I think, in sub-s.(2)(b) of s.39AA the phrase "contact being made" refers to the establishment of contact is there any reason for giving that phrase a wider meaning in para.(a)? I do not think that there is. And consequently there is no reason for concluding that sub- s.(1) of s.39D, unlike sub-s.(2), was intended to extend to the subsequent relationship between an adopted person and his or her birth parent after contact, following the receipt of such information, has been established. On the contrary, a construction of Part 4A which would allow the appellant to be prosecuted and convicted would have absurd and draconic results. Unless the making of contact referred to in s.39AA(2) is confined to the establishing of contact, a birth parent, such as the respondent in the present case, could, many years after a loving relationship had been established with her natural son in consequence of information received by him under s.39B, make an irrational objection pursuant to s.39AA(2)(a) which would not only terminate that relationship but subject the son to criminal liability if he attempted to get in touch with her again, for example, in order to elicit an explanation or attempt a reconciliation. Where, as in the present case, a construction is open which avoids that result, it should, in my view, be adopted. See Beckwith v. R. (1976) 135 C.L.R. 569 at 576; Waugh v. Kippen (1986) 160 C.L.R. 156 at 164; Murphy v. Farmer (1988) 165 C.L.R. 19 at 28-9. I would therefore conclude that "contact" when it is -- 5 of 12 -- 5 used in s.39AA and s.39D means establish contact after receipt of information pursuant to s.39B. It follows from this conclusion that the appeal should be allowed and the conviction quashed. -- 6 of 12 -- 6 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 49 of 1994 Brisbane Before Davies J.A. McPherson J.A. Dowsett J. [Crowe v. Musch; Ex.p. Musch] BETWEEN R.A. CROWE v. DANIEL STEPHEN MUSCH Ex parte: DANIEL STEPHEN MUSCH REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 12th day of May 1995 In this matter I have had the advantage of seeing the reasons of Davies J.A. and of Dowsett J. A literal reading of s.39AA(2) of the Act favours the conclusion that the objection referred to in the final portion of that subsection is capable of being lodged even after the first "contact" (which is evidently used to mean or include "communication") is made. Indeed, it seems to me to be difficult, if not impossible, to read that provision in any other sense. If a broader and more "purposive" approach to s.39AA(2) is to be adopted, it is not difficult to conceive of reasons, more or less cogent according to individual views about the matter, why a birth parent might not wish to -- 7 of 12 -- 7 maintain "contact" with the adopted person, or vice versa, after the initial contact has been made. The persistent and unlooked for efforts of the adopted person to maintain "contact" thereafter might have a tendency (which initially was not foreseen) to threaten or disrupt affectionate and stable family relationships with others which have been established by the birth parent over a long period of time since the adoption took place. In those circumstances, lodging an objection to contact would be the only course open to someone confronted with the invidious choice of reviving the past or maintaining the present and future happiness of herself or himself and others. Unless the legislation compels it, a person in the position of the birth parent in this case should not be deprived of the right to make that choice for herself. The converse holds good for the case where it is the adopted person who objects to further contact. There are obviously arguments of policy capable of supporting a different view of what the result should be; but, in the face of the considerations I have mentioned and the literal terms of the statutory provision, I think it is for the legislature rather than the courts to adopt and impose them. For these reasons, as well as those given by Dowsett J., I agree that the magistrate's decision should be affirmed and the order nisi to review discharged with costs. -- 8 of 12 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 49 of 1994 (O.S.C. No. 18 of 1993) Brisbane [Crowe v. Musch] R.A. CROWE v. DANIEL STEPHEN MUSCH Ex parte: DANIEL STEPHEN MUSCH REASONS FOR JUDGMENT - DOWSETT J. Judgment delivered 12/05/1995 This is an application for an order to review the decision of a stipendiary magistrate sitting at Brisbane pursuant to which the applicant, Daniel Stephen Musch was convicted of two offences against the Adoption of Children Act 1964. The substance of each offence was that the applicant, being an adopted person, having obtained information about his mother pursuant to the provisions of the Act, made contact with her, notwithstanding the fact that she, to his knowledge, had made an objection to such contact. The offences are unusual, somewhat complex and can only be understood in the context of the legislation. Section 39AA(2)provides: "A birth parent of an adopted person, or an adopted person who is at least 17 years and 6 months old, may - (a) object to contact being made with the person by a specified person or class of persons; or (b) object to contact being made with the -- 9 of 12 -- 2 person by a specified person or class of persons and also object to the disclosure of information under section 39B to the person or those persons." Subsection (6) provides that such an objection continues in force until revoked by the person making it. Section 39B provides for the disclosure to an adopted person of information identifying birth parents and siblings. It also provides for communication to an adopted person of the last known name and address of a birth parent, provided that no objection has been lodged pursuant to s.39AA(2). Section 39D provides: "(1) Any adopted person ... who has received information in respect of a person under section 39B shall not - (a) contact or attempt to contact that person; or (b) arrange or attempt to arrange contact with that person; or (c) procure another person to contact, attempt to contact, or attempt to arrange contact with, that person; if that person has, to the knowledge of, the first mentioned person, parent or relative, made an objection under section 39AA that is in force in relation to the first mentioned person, parent or relative." In this case, the applicant obtained information pursuant to s.39B, identifying his mother who had not then made objection to the disclosure of information or to contact. He contacted her, and the contact continued for a period of about two months. She then lodged an objection to contact pursuant to s.39AA(2). Notwithstanding the applicant's knowledge of this objection, he contacted her on -- 10 of 12 -- 3 numerous occasions. Two such contacts are subjects of these charges. The applicant submits that the charges are misconceived because an objection to contact only forbids initial contact. In other words, a relevant person may not lodge an objection to contact once contact has been established. It is submitted that any other interpretation would, "defeat the spirit of the legislation." The respondent submits that such an interpretation requires the implication of words of qualification not justified by the Act. I have some sympathy for the applicant. It might be thought that once two persons are aware of their blood relationship and are of age, the state should not intervene to keep them apart other than where there has been harassment. After all, many of us have to deal with people we would prefer to avoid. However, there is little or no support for the applicant's submission in the Act. Sub- section 39AA(2) does not, in terms, limit the time for objection. As it is likely that persons entitled to object - birth parents and adopted children - will not consider objecting until contact has been made, it would be curious if the Act were construed so as to prevent their objecting after such contact. Sub-sections 39AA(2) and(4) permit a person (the "first person") who has obtained information about another person (the "second person") to object to contact by that second person, but not to the disclosure of information to him or her. If the obtaining of information does not prevent the -- 11 of 12 -- 4 first person from objecting to contact, it would be surprising if the fact that the first person has acted upon such information by making contact with the second person were to bar the second person from objecting to contact. The better view is that a birth parent or an adopted person may make objection to contact at any time, even after initial contact. The application should be discharged with costs. -- 12 of 12 --