Cloud v Commonwealth of Australia & Ors B69/2000 [2001] HCATrans 400 (29 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B69 of 2000

B e t w e e n -

MICHAEL CHARLES CLOUD

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE STATE OF QUEENSLAND

Second Defendant

THE STATE OF NEW SOUTH WALES

Third Defendant

Application to strike out

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 AUGUST 2001, AT 10.44 AM

Copyright in the High Court of Australia

HIS HONOUR: I certify that I hold a letter from the Crown Solicitor's Office of New South Wales to the effect that the State of New South Wales does not wish to appear on the application.

MR M.C. CLOUD appeared in person.

MS K. BUXTON: I appear for both the applicants, the first and second defendants, your Honour. (instructed by the Australian Government Solicitor and the Crown Solicitor for the State of Queensland)

HIS HONOUR: Ms Buxton, it is your application, is that right?

MS BUXTON: Yes, your Honour.

HIS HONOUR: What material do you read then?

MS BUXTON: Your Honour, I read the summons of the first defendant, which was filed on 9 February this year, the summons of the second defendant filed on 14 November 2000 and the supporting affidavit to that summons, that is an affidavit of Ms Cherie Ann Watt which was filed on the same day. That is my material.

HIS HONOUR: Thank you. Mr Cloud, do you have any material?

MR CLOUD: I beg your pardon?

HIS HONOUR: Do you have any material that you wish to read?

MR CLOUD: I think I have seen the supporting affidavits, yes.

HIS HONOUR: Is there any documents you want to put before me though, any affidavit?

MR CLOUD: Yesterday - the case itself has an affidavit filed.

HIS HONOUR: Yes.

MR CLOUD: Right, which supports the claim in detail - - -

HIS HONOUR: Yes.

MR CLOUD: - - - more or less. Like the points in the claim are expanded out in more detail in that than the supporting documents.

HIS HONOUR: Yes.

MR CLOUD: That is the initial constitutional matter that I filed I am talking about. Just yesterday I faxed a submission to support my case to the defendants and rang them up that they received it.

HIS HONOUR: Right.

MR CLOUD: The Registrar in Canberra said I could fax it to him and serve the hard copy today because I was not going to get it here in time yesterday.

HIS HONOUR: Yes, certainly.

MR CLOUD: So I have got those hard copies here now.

HIS HONOUR: All right, thank you.

MR CLOUD: But they are not stamped or anything.

HIS HONOUR: That does not matter.

MR CLOUD: Yes. But they are the same one that was sent, yes.

HIS HONOUR: Well, thank you, Mr Cloud. Ms Buxton, it is your application. Ms Buxton, can I just ask you one matter at the outset: in what respects do you discern any differences, if there are any, between the claim for relief in the present proceedings and the matter that ultimately went to the High Court in respect of which leave was refused?

MS BUXTON: There is no difference, your Honour. There were three matters that were dealt with in the Family Court proceedings.

HIS HONOUR: One was what we used to call custody, is that right?

MS BUXTON: That is correct. The second was the issue of the birth certificate and whether or not that would be altered to reflect the plaintiff's name.

HIS HONOUR: Yes, and an order was made in accordance with the application of Mr Cloud.

MS BUXTON: The application was with respect to the alteration of the birth certificate. The order that was ultimately made was with respect to paternity but having regard to that application. So that was the order that the Family Court judge determined was appropriate in response to that.

HIS HONOUR: Yes. He really succeeded on that. What was the third matter though?

MS BUXTON: The third issue was the issue of access. That was not formally the subject of an application but your Honour will see that in the reasons of his Honour Justice Barry he has given full consideration also to the issue of access.

HIS HONOUR: And that was litigated in the Full Family Court too, was it not, access?

MS BUXTON: That is so. Well, there was a full hearing with respect to guardianship and custody and those other issues that I have mentioned with respect to the birth certificate, initially before his Honour Justice Barry in the Family Court. The substance of those orders then went on appeal to the Full Family Court and special leave was sought to appeal to this Court, such leave being refused.

HIS HONOUR: Yes. Now, are there any changes in circumstances pointed to? I tell you why I ask that. I do not know whether you rely on it or refer to it specifically in your submissions but whether the Anshun v Port of Melbourne Authority Case applies.

MS BUXTON: We do rely on it.

HIS HONOUR: You do, yes.

MS BUXTON: So far as we are aware, there is no relevant change of circumstance and there is certainly none discernible from the amended pleading. So that there is nothing new that is sought to be relied upon by the plaintiff in these proceedings to gain the relief that has already been the subject of those Family Court proceedings.

HIS HONOUR: What is the principal relief you seek today then, the proceeding is to be struck out?

MS BUXTON: That the action be struck out, that is so, your Honour.

HIS HONOUR: The action be struck out.

MS BUXTON: Because all of the relief that is sought in the amended writ has already been the subject of those Family Court proceedings.

HIS HONOUR: In any event, I suppose you would say if there were any change in circumstances there would be nothing to prevent Mr Cloud from making an application to the Family Court to seek some change in the arrangements for the child, is that right?

MS BUXTON: I do not have any detailed instructions as to what Mr Cloud might be capable of doing in the Family Court, so I would not descend into - - -

HIS HONOUR: No, but I am talking about it as not a matter of instructions, it is a matter of law. I mean, what I am really asking you is under the Family Law Act is it possible to make applications as and when circumstances change? It always used to be in respect of a child.

MS BUXTON: The difficulty - I am sorry to cut across your Honour. The difficulty in this case, of course, is that an adoption order has now been made by the Director-General of the relevant Queensland department with respect to the child. So this is not simply a Family Court proceeding where there was a dispute between parents as to the custody of the child. There was a subsequent adoption order made. So the reason why I am reluctant to delve into that answer is that I am sure there are particular provisions that deal with the finality of adoptions.

HIS HONOUR: That deal with adopted children. Yes, quite. Well, is there some sort of point in there that Mr Cloud is trying to articulate that in some way the Family Court had no power to make orders in respect of an ex-nuptial child, that there was a constitutional impediment to that?

MS BUXTON: Yes. You can discern that from paragraphs 3 and 4 of his amended statement of claim, your Honour. In that regard I understand that he asserts that there has been no referral and that it is otherwise beyond the specific powers with respect to marriage, et cetera. In fact, there was a specific referral. I can take your Honour to it if need be.

HIS HONOUR: Was there? Well, that is what I need to see I think.

MS BUXTON: Very well. Your Honour will see that in the submissions I have not dealt in any sort of detail with any of the specific constitutional allegations. That is one of them and I will take your Honour to that referral. To the extent that any other amplification is necessary, I can certainly provide that but I have not done it for the reasons that your Honour initially expressed, that is that we say that these proceedings primarily are wholly an abuse of process. As to the referral, there is a legislative provision that is referred to in the list of legislation that is appended to my submissions.

HIS HONOUR: Yes.

MS BUXTON: At dot point 3 under the heading "Legislation" in that list of authorities the Commonwealth Powers (Family Law-Children) Act 1990 Queensland, section 3 is identified. That contains the reference by the State of Queensland to the Commonwealth to legislate with respect to, amongst other things, or to make orders with respect to the guardianship and custody of ex-nuptial children. So to the extent that there is anything underlying this, that is whether his Honour Justice Barry had jurisdiction to make those orders, the referral gives him that jurisdiction. He does not make any orders with respect to adoption. The adoption was carried out pursuant to statute by the Director-General of the relevant department in Queensland.

HIS HONOUR: In any event, if they are a constitutional point, it could and should have been litigated in those proceedings, is that - - -

MS BUXTON: Yes, that is another submission that we would seek to make, that is to the extent that there is anything new dealt with here - and we certainly do not concede that, but to the extent that there are any novel arguments raised here, the Family Court proceedings and the appellate process was the appropriate place to raise all of those.

HIS HONOUR: Of course, Anshun holds that you look at all of the circumstances and one important circumstance is the child and that the child's future be settled and - - -

MS BUXTON: That is so, your Honour. The thrust of all of this relief is really to seek to impugn what ultimately happened with respect to this trial, so that is the initial guardianship order and then the adoption. So all the relief that is sought is and can only be for the purpose of seeking to impugn that. Now, to the extent that orders were made with respect to guardianship and custody, it is plain that his Honour Justice Barry had regard on a paramount basis to the interests of the child. Those were fully exhausted in those initial proceedings in which the plaintiff had a full hearing and so there is sufficient material before your Honour, in my submission, that the interests of the child have more than been protected.

HIS HONOUR: Yes. What year did Queensland make that reference by the way? I know other States made it at various times. When did Queensland make it?

MS BUXTON: That Act is 1990. I will just see if I have the date that it came into effect, if that is what - - -

HIS HONOUR: No, that is near enough. All right. Well, look - - -

MR CLOUD: There is a copy of the Act here.

MS BUXTON: Thank you. Unless your Honour requires the date on which it was assented to, it might be useful.

HIS HONOUR: No, I do not need that. All right. That is all I need to hear from you at present, thank you, Ms Buxton. Mr Cloud.

MR CLOUD: Yes, I have got lots to say. Firstly, is that this matter is totally different to the first one. The first one began with an application for sole guardianship and custody under the referral of powers Act and when that failed and my application for sole guardianship and custody was dismissed I then appealed the facts of the case and the way that they were dealt with by the judge. This new case is a constitutional matter and it is dealing with not the facts of the case at all and it is dealing with the fact that although there was jurisdiction to deal with custody and guardianship the referral of powers did not refer power in the matter of adoption - because I have got a copy of the Act here. It says it does not refer power in the matter of adoption.

HIS HONOUR: Just hand me up that Act. Yes, you go ahead.

MR CLOUD: Yes, and so my appeal, because I knew I had a clear view that the facts were wrong then that was the only thing that stood out that I should challenge. There was no need to look for any law because if the facts were wrong that was enough. However, I never succeeded in appealing that the facts were wrong or the way the judge dealt with the case was wrong. I never succeeded in that and so the Full Court had the power to - the power referred to them to decide if my case should have been dismissed or not - that was fair enough - and the High Court could look at that, but this, as it did before, in my affidavit I have got a copy of what the High Court dealt with and they were dealing with my being refused sole custody and guardianship. That specifically states that. Do they want to see the copy of the previous High Court orders?

HIS HONOUR: I have read that. I have read what the High Court said - - -

MR CLOUD: Yes. It begins - - -

HIS HONOUR: - - - in refusing your application for special leave. I have read that.

MR CLOUD: Because I was dealing with the - because I was challenging the facts of the case and they were - in their first line they were looking at the fact that I was complaining that I was refused or that my case was dismissed for sole guardianship and access. The matter of the Director-General gaining power was never brought up or challenged directly.

HIS HONOUR: But the argument against you is it should have been brought up if it was available.

MR CLOUD: Well, my argument is I have resolved a constitutional matter - - -

HIS HONOUR: No, no. You can bring up a constitutional matter in any court - - -

MR CLOUD: Of course.

HIS HONOUR: - - - including the Family Court.

MR CLOUD: Of course.

HIS HONOUR: I am trying to help you, Mr Cloud. The argument against you is that based upon a principle of law that if you litigate - if you want to litigate an issue, you should bring before the court all of the related claims in relation to that issue - - -

MR CLOUD: Yes.

HIS HONOUR: - - - so that the court can deal with all matters at the one time. There is a very strong public policy reason for that and it is that the public time and expense of courts should not be taken up with a repetition of matters which can all be dealt with in the one proceeding.

MR CLOUD: Yes.

HIS HONOUR: Now, the Family Court had jurisdiction to deal with any point you wanted to raise, including a constitutional point.

MR CLOUD: Yes.

HIS HONOUR: Had you raised it and had the Family Court got it wrong, then that would have been a ground of appeal to the Full Family Court and if the Full Family Court had got it wrong it would have been a ground for an application to appeal to the High Court.

MR CLOUD: That is true but - - -

HIS HONOUR: But you do not get three or four bites at the cherry. You do not get two bites at the cherry unless you can show some special circumstances.

MR CLOUD: Well, I am stating this, that a constitutional point can be raised at any time and the entitlement to raise a constitutional matter is not negated by the previous matter where it was not raised.

HIS HONOUR: What do you say precisely is the constitutional question that you want to raise? What is it? Just formulate it for me.

MR CLOUD: I am stating, first of all, that the barristers for New South Wales and the Commonwealth at the court proceeded as if there was jurisdiction of the court to deal with an adoption matter. So they were wrong. So, I mean, there was nothing to suggest to me that they might be wrong and that there was no jurisdiction of the court to deal with a matter of adoption. However, the court did deal with the matter of adoption. So there was a major fault in the parties of the Commonwealth and New South Wales for proceeding with that, right.

So you are saying that I should have known better than them about what the jurisdiction of the court was, right, which is, you know - what I am saying is is that people deal with what they know and discovering a constitutional issue gives entitlement to raise a constitutional point and nothing can prevent a person from raising a constitutional point if it is a valid constitutional point. That is what I am stating. There is no laws of appeal time or anything that is going to override the Constitution.

HIS HONOUR: There is a law that says - it is a settled principle of law that says that you should raise in proceedings all of the relevant related points and claims whether they are constitutional or otherwise.

MR CLOUD: Yes.

HIS HONOUR: The fact that it is constitutional does not mean that you can have repetitive goes at trying to get relief.

MR CLOUD: The fact is it is unreasonable to expect anyone in Australia to have known all of the constitutional points when raising an appeal, especially in the circumstances that I was deadset on challenging the validity of the evidence.

HIS HONOUR: Well, just tell me precisely what the constitutional point is that you want to raise.

MR CLOUD: I am stating that the child was treated differently to a child resident of another State, right. That was acknowledge. Judge Barry at the court - - -

HIS HONOUR: No, no, just say that again.

MR CLOUD: That the child was treated differently because of his residency in Queensland to a child resident of New South Wales.

HIS HONOUR: You say there was discrimination?

MR CLOUD: There was discrimination.

HIS HONOUR: Well, what was the discrimination? How was the child treated differently?

MR CLOUD: In New South Wales there is facility for open adoptions and there is different laws regarding consent, right, and there is better recognition of the law, such as the Status of Children Act. I am saying there were plenty of laws which gave rights to the child in other States which the child missed on, right, and there were a whole lot of procedures that were unconstitutional procedures going on in that the power referred to the Commonwealth by the State of Queensland, one, did not deal with matters of adoption, so it was not even in that power; two, the Commonwealth used that power to cause an effect outside of Queensland which was unconstitutional, to cause a national effect based on a law from Queensland; and then there is the fact the Family Court was aware that the records were going to be changed regarding the birth certificate and the identity of the child, so that the plan did not comply with section 118 of the Constitution; and then the child interstate, the freedom to obtain his original birth certificate was interfered with, which does not comply with section 92 of the Constitution.

HIS HONOUR: Mr Cloud, Justice Barry did not make an order for the adoption of the child. Justice Barry made an order that the Director-General of the Department of Family Services be appointed sole guardian of the child.

MR CLOUD: Yes.

HIS HONOUR: He did not make an order for adoption.

MR CLOUD: That was the initial problem that I had in trying to appeal. I was told I could only appeal the orders. However, I am saying there was unconstitutional intent in that the intent was that my parental rights would be removed, that the guardianship of the child - - -

HIS HONOUR: It may have been a consequence.

MR CLOUD: I beg your pardon?

HIS HONOUR: It may have been a consequence, but you say rights. You do not have rights in respect of a child.

MR CLOUD: I do from the Status of Children Act of the State which gives rights to the child to be cared for by his parents.

HIS HONOUR: Gives rights to the child. Gives rights to the child. All right, you go ahead.

MR CLOUD: Right, and Justice Barry fully intended that it was an adoption order because he said in his own words - and I have got a submission which goes with paragraph 4 of my affidavit, submission No 4 in my affidavit, which I will just find here. He says that he did order the adoption - I have got the page here from the transcript - on the top line - on the top. That is a transcript when I was seeking access immediately after the orders were made.

HIS HONOUR: Well, that is not the order that was made in fact.

MR CLOUD: No, but it shows, right, that there was a collaboration between the Commonwealth and the State. The State wanted the consent to be proper for the adoption of the child. They needed my guardianship removed because I had power to vet over consent they concluded, right. So Justice Barry exercised power which was beyond his jurisdiction because the referral to interfere with me having guardianship was not a power referred to the Commonwealth under the referral of powers as well as the fact that the power to deal with a matter of adoption was not referred, right.

Now, I am thinking you might be in the position whereby if you agree with me it will be in a clash with the former orders of the High Court when they dismissed my appeal, but considering that the former orders were dealing with the fact that I was only challenging the facts of the case and that I was essentially challenging the fact that my case was dismissed when I had all these facts to support it, right, this new constitutional matter does not clash with the former orders of the High Court. It is raising constitutional points which I submit can be raised at any time when they are discovered and it is unreasonable to expect somebody to know all of those points at an appeal because they are points which over history will be discovered and they are not going to be discovered instantly a person loses a case.

HIS HONOUR: Yes.

MR CLOUD: Right.

HIS HONOUR: Do you have anything else you want to say?

MR CLOUD: Well, I have submitted basically what I have said, that it is a constitutional matter. It is not in contradiction with the earlier situation. The earlier situation - - -

HIS HONOUR: You mentioned section 117 of the Constitution, of discrimination.

MR CLOUD: Yes.

HIS HONOUR: Now, what other constitutional matter - - -

MR CLOUD: Section 118 in that there was a plan to discredit "Full faith and credit" being given to birth records.

HIS HONOUR: Yes.

MR CLOUD: That was planned by Justice Barry and carried out by the second and third defendants.

HIS HONOUR: Yes. I thought you wanted the child's name to be - - -

MR CLOUD: No, no. I will just explain - - -

HIS HONOUR: - - - the paternity of the child to be recorded.

MR CLOUD: I will just explain - - -

HIS HONOUR: Did you want the paternity of the child to be fully recorded?

MR CLOUD: I originally had an order - - -

HIS HONOUR: Answer my question. Did you want the paternity of the child to be recorded as yours?

MR CLOUD: Yes.

HIS HONOUR: And did not Justice Barry make an order that produced that result?

MR CLOUD: He did that but he - - -

HIS HONOUR: Well, what is your complaint?

MR CLOUD: He gave directions and based his judgment on having the original birth certificate of the child made so that it was no longer for official use and so that the child would not be able to read that paternity declaration on his birth certificate, which is the case now, right. So I am saying there was a plan to go against section 118 of the Constitution.

HIS HONOUR: All right. Well, you say section 118, yes. Now, what other constitutional provision do you say is brought into play?

MR CLOUD: Section 92 in that it interfered with transactions between States for communication. It gave a monopoly to the State of Queensland over the rights of family communications for the child, which was contrary to section 92 and prohibited the child from accessing his New South Wales birth certificate and having it for official use naming his original parents, which is contrary to section 92 in that it interfered with interstate dealings.

HIS HONOUR: Yes, all right. Any other constitutional provision?

MR CLOUD: Well, I propose also for that the Family Law Act cannot be applied to an extent that prohibits a child from honouring - from religious observance of honouring his mother and father.

HIS HONOUR: Yes.

MR CLOUD: The plan of the Family Court trial was to totally remove my parental rights nationally based on a referral of power that was only from one State and was not within the provisions of that referral of power, right.

HIS HONOUR: Where was the child living at the time?

MR CLOUD: Somewhere in - living, in foster care with - - -

HIS HONOUR: But in which State?

MR CLOUD: At Cairns. He was born in New South Wales and took to Queensland by his mother shortly after he was born, I mean, 8, 10 or 12 weeks later, I think.

HIS HONOUR: Yes, all right. Any other constitutional points you want to raise?

MR CLOUD: The matter of - there is a section in 51 of - section 51 of the Constitution that says that when power is referred to the Commonwealth that it only applies to the State that referred it. The law will only apply to the State that referred that power. The point is Justice Barry made orders which were intended to make a national impact on the ability of the child to know his kinfolk - - -

HIS HONOUR: Any other constitutional - - -

MR CLOUD: - - - and, you know, it was contrary to the Constitution in that the effect was to apply nationally. I mean, it is as clear as crystal, if you read the transcripts and everything, that Justice Barry considered whether or not the child ought to be adopted and adjudicated evidence and I am stating there was no power to adjudicate that evidence to that degree because the child was an ex-nuptial child. The power was only referred to make guardianship but not to adjudicate evidence over whether or not the child should be adopted.

So if guardianship did result, it could only result within the provisions of the referral of powers and that would be to not interfere with anyone having guardianship such as myself and to not be a matter of adoption. So you could say that Justice Barry knew that he could make an order for guardianship, yes, but he was not game to disclose the fact that it was also an order for adoption except when he slipped and said that on the page which I handed up there, part of that affidavit, you see.

HIS HONOUR: All right. Is there anything else you want to - any other constitutional matter that you want to refer to?

MR CLOUD: Unless I have skipped something that I have already written, but, I mean, the Constitution says "Full faith and credit shall be given" to the records. It does not say that subject to the matter not having been dealt with before in a court or not having lost. It just says this shall happens. It says a resident of a State shall not suffer a handicap in another State that would not apply to the residents of the other States. It has got nothing to do with any other laws whatsoever. Those are just rights that can come up at any time, right. In the intercourse between States to be absolutely free is just simply a right. It has got nothing to do with whether or not somebody failed to bring that up at an earlier time when they had a chance for appeal.

Secondly, my appeal was only against the facts of the case. That is acknowledged in the High Court transcript that that was what I was seeking to do. I was not seeking to challenge any law at that moment because, I mean, if somebody knew somebody was wrong, you know, like believed they did not deal with the facts, then they would want to challenge that, right. The situation is a bit compounded by the fact that there was a referral of powers to enable, for example, to dismiss my application for guardianship, yes, and there was potentially a power for a new guardian, right, and I was only challenging the facts of the case and the dismissal of my access and rights to know the child.

This new matter is bringing up constitutional points. If somebody brought up these points independently, they would have the right to bring them up. So you are saying - it appears that you could be saying that you want to discriminate against me because I am not an unknown stranger bringing up the constitutional points.

HIS HONOUR: Is there anything further?

MR CLOUD: That is basically what I am saying. Can you tell me is there anything you want to know more about or disagree on?

HIS HONOUR: No, it is a matter for you to make whatever submissions you want but there is no need for you to repeat what you have put in writing.

MR CLOUD: No, no. Well, I have got a question: do the other parties believe that the facts are wrong in my affidavit, for example?

HIS HONOUR: You cannot interrogate the other parties.

MR CLOUD: I cannot. I did not know what I could do. Okay. I have filed a notice of a constitutional matter to the Attorney-Generals. I am stating that provisions of the Adoption Act are invalid. That is not a matter which was to be dealt with in a previous appeal. It is just outright a constitutional matter which I have raised.

HIS HONOUR: Right. Anything further?

MR CLOUD: I do not think so, unless I look at my notes for a minute. There is one point. It is that if justice is important, you have got to look at the fact that I have run out of my chance to appeal.

HIS HONOUR: You have had an appeal.

MR CLOUD: I had an appeal.

HIS HONOUR: You have had two attempts to appeal. You appealed to the Full Family Court and then you attempted to appeal to the High Court.

MR CLOUD: Yes.

HIS HONOUR: There has to be an end to litigation.

MR CLOUD: Of course.

HIS HONOUR: People have to have their rights and interests settled.

MR CLOUD: Yes, yes. I am saying that the very fact that this matter is something beyond what is normally happening in an appeal situation, right, completely beyond what normally happens - normally an appeal goes on the fact that the judge got the story wrong or the facts were wrong or there was insufficient evidence, right. This is something totally out of the category of an appeal. There is probably no appeal ever happened on anything, you know, similar to this, right.

The original appeal was only against the evidence, saying it needed to be reassessed, there needed to be extra evidence, right. This matter is bringing up constitutional points about something which happened, right. If the child grows up, could it be that he grows up as a child who had constitutional rights that were denied simply because I had tried to challenge initial orders that went wrong.

HIS HONOUR: Yes, all right, thank you, Mr Cloud.

MR CLOUD: Yes, but do you agree if the child grows up - - -

HIS HONOUR: No, you cannot interrogate me.

MR CLOUD: Okay.

HIS HONOUR: You cannot interrogate the other side.

MR CLOUD: Sorry, I did not know the rules.

HIS HONOUR: You can make submissions.

MR CLOUD: Yes.

HIS HONOUR: You have been around the courts long enough to know that. Yes, is there anything - - -

MR CLOUD: Yes, I submit that you have no basis - - -

HIS HONOUR: Is there any other submission that you have not put in writing - - -

MR CLOUD: But you have no basis to deny a constitutional matter if, in fact, it may resolve valid constitutional points.

HIS HONOUR: All right. Well, I understand the submission.

MR CLOUD: Right.

HIS HONOUR: Yes, thank you, Mr Cloud.

MR CLOUD: And I would say that if you read my material, it will explain it.

HIS HONOUR: Yes.

MR CLOUD: Yes.

HIS HONOUR: All right, thank you.

MR CLOUD: And that they are wrong - could I just add one thing? They are wrong if they are suggesting I have further recourse in the Family Court because the Family Court made orders to put the matter out of their jurisdiction.

HIS HONOUR: That was my suggestion and I think it was an erroneous suggestion in view of the fact that the child has now been adopted.

MR CLOUD: Yes. That is right and have constitutional rights which I am attempting to defend.

HIS HONOUR: All right, thank you.

MR CLOUD: Yes.

HIS HONOUR: Ms Buxton, just a couple of matters. What is the referral power in section 51?

MS BUXTON: It is subparagraph (xxxvii).

HIS HONOUR: Yes. I thought there was a case that we decided relatively recently about the jurisdiction of the Family Court in relation to children who are resident in Australia. It arose indirectly I think. Was it a Western Australian case?

MS BUXTON: There is a case about - it arose in the context of a dispute in the Family Court in relation to custody I think to a child of a marriage. If your Honour is thinking of the case that I am thinking of, it is the case where the mother then wished to remove the child from Western Australia - - -

HIS HONOUR: To Darwin.

MS BUXTON: - - - where she had given undertakings - to Darwin. Yes, I do have that case with me, your Honour, but it is really a case about section 92.

HIS HONOUR: Yes, the section 92 point failed. I remember that. I think we were unanimous on that.

MS BUXTON: Yes.

HIS HONOUR: But I had an idea something was said about jurisdiction in relation to children.

MS BUXTON: In relation to the referral, your Honour?

HIS HONOUR: Well, no, in relation to custody. I think I may have discussed it myself. I was in dissent on one point at least, but I think I discussed the parens patriae jurisdiction in relation to children.

MS BUXTON: The case is called AMS v AIF. Is that the one to which your Honour refers?

HIS HONOUR: I think it is.

MS BUXTON: It is recorded at (1999) 199 CLR.

HIS HONOUR: That sounds like it I must say.

MS BUXTON: I just have your Honour's judgment in front of me. But at the end of the day it is going to be a different case because, as I understand it, it is - - -

HIS HONOUR: Yes, quite, it is. I just thought there was something there. The suggestion by Mr Cloud, you see, that the Family Court did not have jurisdiction because it was a referred power, exercise of a referred power, and it was not well articulated but the suggestion was that it could not be exercised in Queensland perhaps.

MS BUXTON: Well, to the extent that there is an argument, as I can discern it, can I address it in this way?

HIS HONOUR: Yes, do.

MS BUXTON: There was a referral by the Queensland Parliament to the Commonwealth to make certain orders with respect to ex-nuptial children to vest in the Family Court the ability to make guardianship and custody orders.

HIS HONOUR: Yes, quite, but I suppose the argument is that they have to be - whatever this means - Queensland children, but this was a Queensland child because the child was living in Queensland.

MS BUXTON: The child was resident in Queensland at the time, yes.

HIS HONOUR: Yes. I think that is the argument though, do you not, Ms Buxton, that - - -

MS BUXTON: That if he was born in New South Wales that there is some conflict. There is something that I have to add, although I am not sure how useful it is. Matters that are referred pursuant to that subparagraph of section 51 can, of course, be adopted by the other States and in that sense uniform legislation is created.

HIS HONOUR: Of course.

MS BUXTON: Now, I do not know whether that happened or not here.

HIS HONOUR: No. Could I just have a look at that case, please?

MS BUXTON: I have turned up a passage. I hope I was getting to the part that was relevant in your Honour's judgment.

HIS HONOUR: Thank you.

MS BUXTON: But while your Honour is looking at that can I mention also this, that the starting point for all of these submissions is incorrect in my respectful submission because it assumes that the order that was made in the Family Court is one of adoption.

HIS HONOUR: Look, I understand that. I checked specifically to see what the formal order was and Justice Barry expressed it very clearly and, yes, I understand that.

MS BUXTON: Yes. So that under the Queensland Act which is sought to be impugned - it is a Queensland Act that provides for adoption.

HIS HONOUR: Exactly.

MS BUXTON: It was an adoption that took place in Queensland in respect of a child that was resident in Queensland. So to the extent that there is any - - -

HIS HONOUR: And the referral Act expressly reserved adoption to the State.

MS BUXTON: To Queensland. That is so.

HIS HONOUR: Yes, I understand. Just give me one moment, if you do not mind.

MR CLOUD: Excuse me, sir. The referral does not refer adoption at all.

HIS HONOUR: No, no, I did not say it did. I said it was the one matter that was reserved by the referral Act.

MR CLOUD: Yes, sorry. Sorry, your Honour.

HIS HONOUR: The right of adoption - the right to make laws with respect to adoption remained with the State.

MR CLOUD: Yes.

HIS HONOUR: That is what the Act provided. It is paragraph 261:

In Western Australia the Supreme Court could always exercise the parens patriae jurisdiction subject to any statutes dealing with children on the grounds of nationality and ordinary residence.

So the principle seems to be that if the child is ordinarily resident in the State then the State, either by its courts or otherwise, has jurisdiction over the child and, indeed, will exercise it because a child is involved.

MS BUXTON: So that answers the question with respect to whether the referral or the reservation of power to the State was sufficient with respect to the adoption of the child. The other thing to say is that in so far as that case has things to say about section 92, of course, you have to look at the purpose for which the legislation might have been passed and if the offending the provision is said to be, for example, the Adoption of Children Act because it has this flow-on effect with respect to birth certificates being altered to reflect changed status, et cetera, of course, the purpose is the legitimate furtherance of the adoption, not some sort of discrimination between the States or, of course, interference with intercourse between the States.

HIS HONOUR: Yes. What about the discrimination point, section 117?

MS BUXTON: Section 117 of the Constitution, as your Honour is aware - - -

HIS HONOUR: I suppose the argument again is not clearly articulated but it seems to be that the referral Act in some way discriminates against this child because there is not a referral Act in New South Wales. I do not know whether there is a referral Act in New South Wales or not.

MS BUXTON: I do not know the answer to that question.

HIS HONOUR: It seems to be the argument, I do not know. Is that your argument, Mr Cloud?

MR CLOUD: My argument is to do - - -

HIS HONOUR: On section 117, just on that.

MR CLOUD: Yes.

HIS HONOUR: What is your argument on that? Have I put it properly?

MR CLOUD: Right. My argument is is that Justice Barry acknowledged that if the same case was happening in another State that that other State might be able to accommodate an open access order or an open adoption.

HIS HONOUR: Well, he did not have the other State laws before him though.

MR CLOUD: No, no, but he - - -

HIS HONOUR: Can you point to one - can you point to any discrimination against this child because the child was living in Queensland at the time?

MR CLOUD: Yes.

HIS HONOUR: All right. What is it?

MR CLOUD: The discrimination was that the consent for adoption in Queensland required, if the parents were not married, only the consent of the mother, right, whereas in other States - well, the Status of Children Act gives the child entitlement as if his parents are married and actually it should in Queensland too, but in Queensland - Queensland did not have the consent to adopt the child unless Justice Barry made the order to make them a guardian to give consent, you see, because the Adoption Act required the consent - - -

HIS HONOUR: But how would it have been different in New South Wales?

MR CLOUD: The process would have been different in New South Wales for several reasons. One was that Queensland was not willing to have long-term fostering of the child, right, or an open adoption.

HIS HONOUR: But the New South Wales authorities might or might not have permitted that.

MR CLOUD: No, but in New South Wales there is the option of re-establishing communication after an adoption and making it an open adoption. That option does not exist in Queensland. So Justice Barry - I have got a letter from the Minister of Families in Queensland where it says that Justice Barry specifically ordered that there should be no access until the child turns 18 or specifically directed that. That is in my - it is a letter in my affidavit somewhere. So the child was being treated that he would not have any chance for communication with his natural family where in other States he would have the chance.

HIS HONOUR: All right. Well, I understand the argument now.

MR CLOUD: Yes, yes.

HIS HONOUR: All right, thank you. Thank you, Mr Cloud. I understand your argument. Yes, Ms Buxton.

MS BUXTON: Your Honour, section 117 of the Constitution does not prevent States from passing different laws.

HIS HONOUR: No.

MS BUXTON: It does not prevent different States from passing different laws. What it says is if you are inside one State, a piece of State legislation cannot treat you differently than if you are outside the State, or vice versa. So, it prevents an individual State from passing discriminatory legislation in so far as residents of those affected by its provisions are concerned.

HIS HONOUR: That it is aimed at or has an effect.

MS BUXTON: Yes. So, that it is not a constitutional argument to say that various State legislation might offend section 117 because it is different in terms.

HIS HONOUR: All right. Well, I do not need to hear you further, thank you.

MR CLOUD: Can I submit this?

HIS HONOUR: No. Well, all right, one more chance.

MR CLOUD: Okay, was that the order of Justice Barry was made to cause a disability in New South Wales which would not have applied to a child resident of New South Wales because of their different adoption laws and different provisions.

HIS HONOUR: All right, thank you.

This is an application by the first and second defendants to strike out an action brought in the original jurisdiction of the High Court. The action seeks to raise issues in respect of an ex-nuptial child fathered by the plaintiff. The issue of the custody of that child and related matters were dealt with in proceedings in the Family Court which were then subjected to an appeal to the Full Court of the Family Court and, in turn, to an application for special leave to appeal to the High Court. Except in one respect, the plaintiff was unsuccessful at all levels.

The respect in which the plaintiff was successful was an order for the recording in birth records, to which the child will not have access, of the father's paternity of the child. This follows because the legislation under which the paternity of the child is recorded denies access by the child at least until the child reaches 18 years of age.

Is that correct, Ms Buxton? I have stated the effect of that correctly?

MS BUXTON: Yes, the New South Wales birth records are sealed until that date.

HIS HONOUR: Yes. This is so because the child's birth was recorded where it occurred in New South Wales and what I have stated is the effect of the relevant legislation in that State.

The formal orders that were made by the Family Court and which were affirmed on appeal to the Full Court of the Family Court were that the plaintiff's application for sole guardianship and sole custody of the child should be dismissed, and that the Director-General of the Department of Family Services be appointed sole guardian of the child. His Honour Justice Barry who heard the matter made it clear that there would be no order as to access. It was assumed, and correctly so as events have turned out, that if such an order were made arrangements for the adoption of the child would be made by the Director-General.

The reasons for judgment of Justice Barry were carefully considered by the Full Court of the Family Court and no error of any kind was discerned in them. The application for special leave to appeal to the High Court was refused for the reasons stated there which did not in any way impugn the findings and the orders that were made by Justice Barry.

The plaintiff in the proceedings in the High Court seeks similar, if not to say identical, relief in some respects to that which was sought in the proceedings in the Family Court. He contends, however, that he seeks relief now on an entirely different bases - on constitutional bases - which he has since discovered and wishes to press and which were not, in any way, advanced in the proceedings in the Family Court. The only ground upon which he contends that he should be permitted now to raise these matters is that he was unaware of them before, and that because they are constitutional matters of a complex kind, he should be excused for not having raised them before and should be now permitted to advance them at length in the High Court.

MR CLOUD: Your Honour, can I submit something additional?

HIS HONOUR: Yes, Mr Cloud.

MR CLOUD: My claim is effectively against adoption procedures after the orders, right?

HIS HONOUR: All right.

MR CLOUD: And it is just that because the other parties blame the first defendant, blame the Commonwealth on it in their letters, therefore the Commonwealth is not party to it. It is the unconstitutionality of the adoption proceedings aside from what Justice Barry ordered in addition; that they blame him for it, so that is why he is brought into it.

HIS HONOUR: Mr Cloud adds that he has a real complaint in addition to that which he made in the Family Court which is that the adoption procedures are in all respects unconstitutional.

MR CLOUD: Yes.

HIS HONOUR: Unconstitutionality is advanced by him by reference to five provisions of the Constitution. He submits that section 51(xxxvii) of the Constitution has the effect that a reference by a State of a State power to the Commonwealth can only apply to the referring State. No doubt that is so but the Act in question here, the Queensland Act which refers jurisdiction over ex-nuptial children effectively to the Family Court does not in any way purport to extend to any children who are not resident in Queensland as the referring State. This child was resident in Queensland at the time that the proceedings were brought and there is in my opinion no constitutional impediment arising out of any misapplication of section 51(xxxvii) of the Constitution.

Mr Cloud next points to section 92 and says that its provisions are infringed by the making of the adoption order and by the New South Wales provisions which prevent access by the child to the birth records in New South Wales before the child attain 18 years. That submission has no merit. It is, in any event, foreclosed by the decision of this Court in AMS v AIF (1999) 199 CLR 160.

Mr Cloud makes a submission that the different provisions in Queensland from those in New South Wales where the child was born and his birth is recorded, with respect to such matters as adoption, fostering and access, have the consequence that there has been discrimination against the child or against him as the parent of the child. This submission also must be rejected. It is open to the States to make different laws with respect to the guardianship and custody, fostering and adoption of ex-nuptial children. The fact that they might do so does not mean that the child or the child's parent is in fact subjected to any disability or discrimination which would not be equally applicable to the child or the parent if either were a subject of the Queen resident in another State.

MR CLOUD: Can I make a submission?

HIS HONOUR: No, you are finished.

The plaintiff, apparently, either wishes that the child be brought up under a religion which he would prefer or that the child not be subjected to the observance of some other religion. In this regard, he seeks to invoke section 116 of the Constitution. It can have no application to this case. No orders have been made by any court with respect to religious observance by the child and there is not in issue here any law made by the Commonwealth for the establishing of any religion or for the imposition or prohibition of any particular religious observance by anybody.

The plaintiff has a submission that the New South Wales provisions with respect to the recording of the child's name and the birth records and the denial of access to them until the child attains the age 18 years in some way impinges upon the public Acts and records and judicial proceedings of a State and that thereby section 118 of the Constitution has been infringed. I reject that submission. It is a matter for the States as to how they wish their records to be kept and what alterations and access may be made or given to them.

MR CLOUD: Can I submit?

HIS HONOUR: Well, what is it this time, Mr Cloud?

MR CLOUD: That the Constitution - it is a matter of the Constitution because it says "Full faith and credit shall be given". That is a Commonwealth matter.

HIS HONOUR: I understand that.

The plaintiff has sought to raise various other matters in his written submissions but I have stated, I think, the principal arguments upon which he relies so far as the Constitution is concerned. As I have said, I do not think that there is any merit in any of the arguments of any kind. However, even if I did think that any of them were reasonably arguable, I would still strike the action out on the ground that any of the matters that he now wishes to raise could and should have been raised by him in the proceedings in the Family Court and the High Court.

MR CLOUD: Can I submit one thing?

HIS HONOUR: Yes, all right, Mr Cloud.

MR CLOUD: If they had have been submitted then and had have been successful, natural justice confers that the same applies now. If they were right - if they could have been right then, they could be right now.

HIS HONOUR: Yes, thank you, Mr Cloud.

It is important that there be finality to litigation unless, in some way, there is a genuine issue about a child's wellbeing.

MR CLOUD: May I submit?

HIS HONOUR: No, you may not.

The principle that there should be an end to litigation and this may apply equally to children and, in some ways, may, in some cases, have an even greater relevance to litigation concerning children. It is obviously quite undesirable that there be prolonged and repetitive proceedings regarding the settlement of a child's future. This child's future has now been settled for some time and it would be highly undesirable that any questions be reopened at this stage with respect to him.

MR CLOUD: Your Honour, I must interrupt here because you are stating that you know the facts, where the facts are the child has sisters which he wants to meet and he is not allowed to meet and his sisters want to meet him and they are not allowed to meet him.

HIS HONOUR: I order that the action be struck out. I will need to revise these reasons but, in substance, what I have said are the reasons why I would strike out the action.

Do you have any other application, Ms Buxton?

MS BUXTON: I am instructed to ask for costs.

HIS HONOUR: Yes. What do you say about the application for costs, Mr Cloud?

MR CLOUD: Well, I do not own any assets and secondly, there are valid constitutional - - -

HIS HONOUR: Well, you do not own any assets but you bring these proceedings before the courts and the Commonwealth and the State are put to considerable expense to deal with them and the Court's time is taken up with them.

MR CLOUD: Yes, but I have read the constitutional rights that are written there, so that is why I bring them. Would it be right later to discover constitutional rights and not bring them to the Court?

HIS HONOUR: You ask for costs. Do you ask for them on any particular basis?

MS BUXTON: Can I take some instructions, your Honour?

HIS HONOUR: Yes.

MS BUXTON: I am not instructed to ask for them on an indemnity basis, I simply seek an order that the plaintiff pay the first and second defendants' costs of an incidental to this action, including this application.

HIS HONOUR: Yes. I order that the plaintiff pay the defendants' costs of and incidental to the action, including the costs of this application.

MS BUXTON: Would your Honour certify for counsel?

HIS HONOUR: And I certify for counsel. Is there anything further?

MR CLOUD: Is this decision appealable?

HIS HONOUR: You will have to take your own advice on that, Mr Cloud.

MR CLOUD: Okay.

HIS HONOUR: There is nothing further then, is there?

MS BUXTON: No, thank you, your Honour.

AT 11.58 AM THE MATTER WAS CONCLUDED