Bienstein v Bienstein M133/2000
[2000] HCATrans 734
•1 December 2000
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M133 of 2000
B e t w e e n -
HELEN BIENSTEIN
Applicant
and
SIMON BIENSTEIN
Respondent
Application for removal pursuant to section 40 of the Judiciary Act 1903
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 1 DECEMBER 2000, AT 9.35 AM
Copyright in the High Court of Australia
HIS HONOUR: Mrs Bienstein, you appear on your own behalf, do you?
MRS H. BIENSTEIN: I do, your Honour. Are you Justice Hayne?
HIS HONOUR: Just before you begin, Mrs Bienstein, I have a certificate from the Deputy Registrar that she has been informed by Mr Simon Bienstein, the respondent in this application, that the respondent does not wish to take part in the matter and will abide the decision of the Court. Yes, thank you. Yes, Mrs Bienstein.
MRS BIENSTEIN: I just wish to know your name, please?
HIS HONOUR: Hayne, Mrs Bienstein.
MRS BIENSTEIN: Justice Hayne, I have an application that you disqualify yourself on the basis of apprehended bias and conflict of interest. I would like to hand that up to you.
HIS HONOUR: Yes, thank you very much. Should I read this now, Mrs Bienstein? Is that the best way for us to go ahead?
MRS BIENSTEIN: I think so, your Honour.
HIS HONOUR: Yes, thank you, I will do that. Yes, I have read that, Mrs Bienstein. Is there anything that you would wish to add, orally, to what is said in writing here in relation to the application that I disqualify myself from sitting in the matter?
MRS BIENSTEIN: No, your Honour, I have nothing further to add, and I just seek your ruling on that on the basis of the written material.
HIS HONOUR: Yes, thank you. One matter of fact, Mrs Bienstein, that I should draw to your attention is that the hearing today, though described as a hearing in chambers, is a hearing to which members of the public are able to come. This is not a proceeding which is occurring in closed court. It is not a proceeding from which members of the public or the press or anyone is barred from attending. Anyone may come into the Court so long as there is physical room for them to be accommodated.
MRS BIENSTEIN: Your Honour, I did not know that it was described as a hearing in chambers but I put that in just in case.
HIS HONOUR: Yes. It is, Mrs Bienstein, yet another reflection of matters of history in the law, the matters of history which of interest to lawyers but I suspect of interest to no-one else and really of no relevant
practical significance in the way we have described. What I have sent for, Mrs Bienstein, so that you should know what I have is a copy of the pamphlet judgment in Johnson v Johnson to which you referred. It is, of course, a judgment with which I am familiar but I wished to identify the judgment from which you had quoted. Am I right in thinking that it is the judgment of Justice Kirby?
MRS BIENSTEIN: Not all of it. The initial part of it, I think, is the majority judgment and then part of it, later on, is from the judgment of Justice Kirby.
HIS HONOUR: Yes, thank you. By notice of motion dated 16 November 2000, Mrs Helen Bienstein has made application for orders that certain proceedings pending in the Family Court of Australia be removed into this Court. That motion is returnable before me today. Before argument on the principal motion began, Mrs Bienstein applied for me not to hear that application and that I “stand disqualified from hearing any of the Bienstein matters related to and stemming from their Family Court proceedings because of a conflict of interest and consequent apprehension of bias”.
In support of that application, Mrs Bienstein provided written submissions detailing the basis for her contention that it is inappropriate that I should sit. It is as well that I set out some, but not all, of what is said in those written submissions. Mrs Bienstein contends that:
“1) The various applications to the High Court are based on allegations of serious and possibly criminal misconduct in the Melbourne Registry of the Family Court and in the bodies which are supposed to regulate the Legal Profession in the State of Victoria.
2) Hayne J stems from the Melbourne legal fraternity and is likely to have past and continuing associations and friendships with the solicitors, barristers, serving and retired Judges and Registrars who are subject of those very serious complaints.
3) Thus, if Hayne J were to sit in judgement, there would be a real possibility of an actual conflict of interest and there would certainly be a public perception of a conflict of interest and of consequent bias.
4) Since justice must be seen to be done I submit that Hayne J should stand disqualified from all Bienstein matters.”
In the course of her written submissions Mrs Bienstein refers to the recent decision of the Court in Johnson v Johnson (2000) HCA 48 in which reference is made to what were described in the joint judgment at paragraph 10 as “principles which are well established” in relation to disqualification for what is usually referred to as apprehended bias. It is to be noted that by her present application Mrs Bienstein refers to what she contends is a conflict of interest as being the source of the consequent apprehension of bias.
That conflict of interest is said to stem from what might broadly be described as my past professional history and the connections which I have, or might be thought to have, with “the solicitors, barristers, serving and retired Judges and Registrars” who are the subject of the complaints which Mrs Bienstein has about the way in which certain proceedings in which she has been engaged in the Family Court have been conducted or dealt with. That before appointment to the Supreme Court of Victoria in 1992 I was in practice at the Victorian Bar is a matter of public record. That in the course of that practice, which ceased more than eight years ago, I encountered other members of the Victorian Bar and the legal profession of Victoria is, of course, self evident. The fact is that my practice at the Bar seldom took me into areas of family law. Further, the fact is that, so far as I understand it from my reading of the papers in the principal application, none of the solicitors, barristers, serving or retired judges or registrars who are mentioned in those proceedings are persons whom I would count as among those of my social friendship group. Some of them are, of course, known to me, but beyond that, they are not persons with whom I have had, or now have, any social contact beyond the occasional intersection that is inevitable in the legal community of a State.
In respect of none of the persons to whom reference is made in the papers which I have read do I feel the slightest degree of embarrassment about dealing with the allegations which Mrs Bienstein makes in her principal application. I have no knowledge, other than what I have read in the papers filed in Court, of the litigation which gives rise to the present application. I have no knowledge, other than by reference to the papers filed in Court, of the issues which arise on the present application or which may lie behind that application.
All this being so, there is, in my opinion, no demonstrated basis for any observer to conclude, either that there is some conflict of interest or that, by reason of some conflict of interest, I would not bring to the determination of the present application an unprejudiced mind.
It is necessary, in considering an application to step aside from dealing with a matter which has come before a judge in the ordinary course of the work of the court, to remember that judges should step aside if applicable principle would require them to do so but that they should not do so if those applicable principles would not require that result. As Justice Mason said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party…
Although it is important that justice must be seen to be done it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
Notwithstanding the matters which Mrs Bienstein urges in support of her application that I not sit, I am of the opinion that no case is made warranting my declining to deal with the matter now before the Court. Accordingly, the application is refused. Now, Mrs Bienstein?
MRS BIENSTEIN: I thank your Honour for that considered judgment and you have set my mind completely at ease. I have no reservations about your being able to judge this on its merits.
HIS HONOUR: Yes.
MRS BIENSTEIN: And, I should point out that I never intended that application to be there for the purpose of getting a judge who would be more ‑ ‑ ‑
HIS HONOUR: I did not take it so, Mrs Bienstein, but when we give judgments in this Court we speak not simply to the parties but sometimes we speak to a rather wider audience and sometimes things need to be said which need to be directed to that wider audience, rather than simply to the parties, so that was what was happening.
MRS BIENSTEIN: Thank you.
HIS HONOUR: Now, your principal application, Mrs Bienstein, the section 40 application. First, I understand that there is an amendment to that that you would seek to make, is that right, that your first notice of motion has seen a change which you sent by facsimile to the Deputy Registrar and ‑ ‑ ‑
MRS BIENSTEIN: Yes, and by mail as well.
HIS HONOUR: And, it is that amended version that you seek to move on.
MRS BIENSTEIN: Yes, your Honour.
HIS HONOUR: If you need leave to amend you have that leave, and can we therefore work off the amended version of the document.
MRS BIENSTEIN: Thank you. At the outset I should say that I also filed affidavit of service of the section 78 constitutional matter things with all the Attorneys-General and in the Canberra Registry and with the respondent.
HIS HONOUR: Thank you. Now, have we heard anything back from the Attorneys?
MRS BIENSTEIN: Yes.
HIS HONOUR: Can you just give me a score card.
MRS BIENSTEIN: Yes, all of the responses are thereto, and just briefly – I will just turn to that part:
All Attorneys General have now provided responses. None elected to intervene at this stage. The Northern Territory gives a flat negative response. All others seek to be further informed in order to reconsider intervention if the Removal motion succeeds or if any substantive matters find their way into the High Court. The latest reply on behalf of the Commonwealth Attorney General includes the following, “If either of the proceedings in the Family Court is taken further on appeal, or is removed to the High Court, the Attorney‑General might decide to intervene at that stage.”
HIS HONOUR: Yes, thank you. We can, I think, put those questions to one side for the moment.
MRS BIENSTEIN: Yes.
HIS HONOUR: We come, then, to the substance of your application, do we no?
MRS BIENSTEIN: Yes, your Honour. I have been litigating since Tamara was turning 18 which was late in 1996. She turned 18 on 17 December of that year. Prior to that there was a registered child maintenance agreement. That agreement was registered in the Family Court in 1991 and that was the initiating document of that ML7725 of 91 filed in the Family Court. The actual agreement we refer to is the section 86 agreement because when it was registered in the Family Court it was registered pursuant to section 86 of that Family Law Act, as it stood then, and it actually made arrangements for all matters, including property division and access and custody as well as maintenance.
HIS HONOUR: And, can I just understand, was that an agreement that had been reached between the parties rather than a judicial determination of what should happen.
MRS BIENSTEIN: That is right.
HIS HONOUR: This was the registration of the agreement which the parties had made, is that right?
MRS BIENSTEIN: That is correct.
HIS HONOUR: Yes, go on.
MRS BIENSTEIN: And that was done through a lawyer friend of ours who worked for both of us and that lawyer friend had since remained friendly with the husband but not with myself. That registered agreement, we thought, covered all matters but in fact it covered nothing. We were not told that it needed to be registered with the Child Support Agency but it did so because by then there was a Stage 2 Child Support. So, when there were problems with the – when the husband established a new relationship things started to break down on that, okay, and at that stage he wanted to change arrangements for maintenance for the older child of the marriage who had turned 18, or was about to turn 18, and that is when I first started to learn that the agreement would not continue past that time.
He went to take action and when he did so he did not mention child maintenance but instead made a run on the property which is my home where I live with Tamara. There was an involvement of the husband in that property past the separation, because we did not live in that house together, but he had an interest in the property because the property was purchased in pursuance of a joint venture agreement between myself, my older brother and a family trust company that the husband controlled. The joint venture agreement provided that when Tamara turned 18 the husband would be then able to get the family trust company’s share out of the house.
Well, he did not want to wait and he wanted that, plus more, so that he filed an application in Sydney, where he was living at the time, for $100,000 immediately, thank you very much.
HIS HONOUR: And was that filed in matter ML7725 or was that filed in separate proceedings?
MRS BIENSTEIN: No, but it has since been transferred from Sydney and it is part of the documents that are in the Melbourne Registry.
HIS HONOUR: In 7725?
MRS BIENSTEIN: Well, I think that it has a Sydney number on it but they are held in Melbourne and they are not part of ML7725, as I understand it.
HIS HONOUR: Can I tell you where I am going so that you can understand one point that troubles me?
MRS BIENSTEIN: Yes.
HIS HONOUR: Under section 40 we can remove causes that are pending, that is causes that are incomplete.
MRS BIENSTEIN: Yes.
HIS HONOUR: I need to understand better than I do now what it is exactly that is pending about the two matters you have identified in your application, ML7725 and SA – the number eludes me, but the SA number.
MRS BIENSTEIN: And the SA87 of 99.
HIS HONOUR: Yes. Now, at some point ‑ ‑ ‑
MRS BIENSTEIN: In the ML7725 all matters regarding the section 86 agreement as it relates to child maintenance past the age of 18 and for special matters such as costs of education and hospital benefits contributions, et cetera, those were ruled on by Justice Carter in her 12 November 1998 judgment. Well, actually she made a ruling about it during the course of the trial but she speaks about it in the judgment as well. Your Honour does not have that judgment before you.
HIS HONOUR: I have some pages from it, I think. That is all I have at the moment, is it not, Mrs Bienstein?
MRS BIENSTEIN: Yes. That is right. I do have it here with me but I did not file it as part of the documents.
HIS HONOUR: Can I just interrupt you there and just tell you first what I have got and, second, what I understand by it.
MRS BIENSTEIN: Yes.
HIS HONOUR: First, what I have got is the face page, the index page and pages 118 to 120.
MRS BIENSTEIN: Yes, I have that here, a copy here.
HIS HONOUR: That is what I have got. Now, second, what I understand from it, and I just need to tell you this so that you can correct me if I am wrong. I understand that the orders that the judge made then decided all of the applications that had been made in matter ML7725 up until that date. Now, whether she got it right or wrong, Justice Carter decided all of the matters that were then pending, but is that right?
MRS BIENSTEIN: Not completely, your Honour. As a result of the proceedings started in late 1996, as Tamara was approaching 18 years of age, or just as she turned 18, those came before the court on three occasions and determinations were made in those and orders by consent were entered in June 1997. Those orders were challenged by me in an application for extension of time to appeal those. Justice Carter dealt with that application and dismissed it.
Orders that were made in February of that year were the ones for passing a present for Tamara’s half‑brother’s second birthday and for injunctions of both parties in regard to interfering or harassing or in any way, you know – I cannot remember the other word that was there, but with each other and with each other’s family and work colleagues, et cetera.
HIS HONOUR: Yes.
MRS BIENSTEIN: That gave rise to applications by me for contravention of orders by the husband in that he wrote directly to Tamara and harassed her. That application was dealt with by the judge and that application in fact was the one that she – Justice Carter dismissed as vexatious and the basis was then set for her being able to invoke section 118 to restrain me. There was also a hearing early on before Judicial Registrar Nikakis. That was, I think, on 5 January – no, February 1997 in which I was represented by lawyers at the time and they felt that they should put to the court an oral application that the husband’s lawyers should be stricken from the record as representing him on the basis that they colluded with another lawyer who was the one who drew up the section 86 agreement to use a court subpoena to obtain documents whilst bypassing the court altogether and not providing them to the court.
Instead of hearing that application as a contested matter Judicial Registrar Nikakis decided that he would not call on my counsel at all but would conduct an investigation that would not be on record. He heard the account from Mr Brown who was acting for the husband which told him that there were serious and several problems in the way that that matter was handled, the subpoena documents were the subject of several serious misconduct breaches, and the Judicial Registrar decided that since it was just a matter between lawyers he did not see it as anything to be concerned about, refused to publish the judgment and made sure that there was no record of it anywhere and then caused a delay of several months in my coming to a hearing. So, that has never been dealt with and I would like to bring that to the Court here. So, other than that ‑ ‑ ‑
HIS HONOUR: Now, just again, can I interrupt you?
MRS BIENSTEIN: Yes.
HIS HONOUR: Where do I find in the papers you have filed reference to that application that you have just described to me?
MRS BIENSTEIN: You will not find reference on file to it.
HIS HONOUR: Right.
MRS BIENSTEIN: It is part of my application that all of the matters in the Family Court be transferred here for determination of the Family Court issues as well as my allegations of misconduct. There will be in one of – and I will tell you which part of it is – there should be a draft notice of appeal from that in one of the – yes, it should be in exhibit HB5. I will just look to see whether it is there.
HIS HONOUR: Just a moment, in 5, HB5, yes.
MRS BIENSTEIN: Yes, that is correct. There was an application to the Full Court on the day of hearing of this appeal which sought extension of time to issue various appeals, and I think we start that application on page 20 and I will just –
extension of time…..to lodge and prosecute appeals arising from proceedings at first instance which were instituted as a consequence of the August 1998 trial ‑
No, that would not be in here, then.
HIS HONOUR: Can I come at the problem, then, in this way. I need to understand what live questions you say exist between the parties which should be removed into this Court because the next step after that will be, why should we remove those questions? But step 1, what are the questions, step 2 will be why, do you understand?
MRS BIENSTEIN: Okay. I will address them off the top of my head. They are huge numbers. The main cause of action is just the maintenance for Tamara.
HIS HONOUR: Can I interrupt you, again, and then I will stop interrupting you. It is highly improbable that this Court is going to take on a Family Law matter. This Court may take on constitutional questions.
MRS BIENSTEIN: Yes.
HIS HONOUR: Not necessarily. Commonly it will not. It waits until those questions have gone through other courts and have become a bit more refined. But it is highly improbable that we can take on a Family Law matter and resolve those questions. The reason we will not take it on is we simply have not the time or the resources, given the other obligations we have. We are the final court of appeal in Australia. We are the final constitutional arbiter in Australia. That cuts our time out and, please ‑ ‑ ‑
MRS BIENSTEIN: And there are only seven of you.
HIS HONOUR: ‑ ‑ ‑ if you invent the 36‑hour day and the 12‑day week, we would be very grateful now. So what I need to understand is why there are issues of a kind that we should take on. Can I tell you that I begin from the premise that you are entirely dissatisfied with the way in which your proceedings have been dealt with in the Family Court. I understand that that is the premise of this argument. What I need to know is why we should take on identified, in effect, refined, in the sense of sharply defined, issues.
If they are constitutional issues, that I can understand. If they are general issues of the way in which lower courts in the country have been doing their business, those problems best come to us on appeal rather than simply taking the case up, putting it in our Court and trying to deal with it as though we were a trial court. We are not. Now, does that identify to you the kind of problem that you need to address to me?
MRS BIENSTEIN: I think it does, but if your Honour could just give me leeway in this way. I would prefer to take it from the other end and work back to what issues there are because the most important part for me is that I cannot appear in the Family Court because they have threatened my safety, my health and my liberty, and they refuse to assure my safety and they will continue to threaten me and intimidate me at every hearing. So it is impossible for me to continue to work and put my case in the Family Court. I have tried many times. I have been yelled at over and over, interrupted, anything that could be done to stop me putting my case has been done, including being put in a cell.
HIS HONOUR: I have read that. I have read that transcript, yes.
MRS BIENSTEIN: I was denied food. The judge knew about this. He made light of it. He put me in a position where I had these two alternatives: either I stay and fight to present my case or I do what he suggests and pushes for, which is that I get out of there and not come back. Now, I have had this from two courts of appeal who have distorted what documents are before them, what applications are before them, have used the most ridiculous, obviously wrong reasons for not dealing with applications for bias, would not even read the material.
They take the position that if I make allegations of serious misconduct against other judges or against registrars, then they will do their utmost to get me personally, and this is where it stands and the Chief Justice has made it quite plain in his responses, or lack thereof, to my correspondence directly to him that he will not list any of my matters in a way that will give me any relief. He refuses to list a Full Court’s order for retrial.
Even though I think that the order is completely wrong, I think by reading the High Court judgments the Full Court should have done a review of what had been done before. They should have taken further evidence and they should have determined the matters themselves. That is what I asked for. I was thwarted in getting any evidence to put before them and they refused even to make interim orders for any relief, even though they sat there and said, “Well, I can’t see how the judge could have refused to make orders for maintenance. It was her duty to do so”. And they themselves refused to do that as well.
Now, they did finally get to the stage where they were forced to bring down a judgment in that, after having refused to make any interim orders, after nine months. That order was for a retrial. The Chief Justice is there making sure that it never, ever happens.
HIS HONOUR: That order for retrial, is that an order which you have sought to appeal to this Court?
MRS BIENSTEIN: I have not sought to appeal it. I became completely exhausted.
HIS HONOUR: Yes. No, it is simply a point of information.
MRS BIENSTEIN: But I would like to challenge all of those, not just on the basis of errors of law. They are not errors. These are deliberate, criminal abuse of their position. They are crimes against the Crimes Act 1914 of the Commonwealth, and I have sought from the Attorney‑General and from the Federal Police to prosecute and there is a determination that no judge will have criminal complaints investigated against them.
The Federal Police say that it is not a matter for them and I have it in writing that it is only a matter for the Attorney‑General. The Attorney‑General refuses to do anything with those allegations and sends them right back to the court. I have nowhere else to turn. So that is why I need to have this Court in this very exceptional, very serious case to remove all of my cause, the whole cause of action, which is basically for Tamara’s maintenance. She is disabled. The court fully admits now that she is disabled. They tried for months to pretend that they did not have any evidence of it, but finally they had to admit, yes, she is disabled. She cannot look after herself.
I am her full‑time 24/7 carer, I am her mother, I have her power of attorney, and they will not allow me to represent her and to put her case in court. They will not accept that she is an infirmed person and that she has to have a next friend appointed. They allow the husband, her father, to file applications against her and to continue those applications without even stopping to think about her rights, and if I put it before them that those are her rights, they say, “Well, you have no standing in this court because you have been injuncted”.
They have no right to put any sort of bar on my ability as a mother, as a parent, a responsible parent, to bring my child’s interests before the court. Even if she was not disabled, even if I did not have her power of attorney, I would still under the Family Law Act have a right to represent her interests and she cannot be forced into becoming party to the proceedings. Well, Justice Carter turned the law on its head, deliberately, and she did not do it just because she wanted to. She was told to do it.
She came in as a new judge in mid that year. Before she even took up her position the case management person who was acting at the time, Mr Coulsell, told me that my trial in August would be heard by a completely new judge. They knew who it was and they were briefing her and that Justice Smithers was very instrumental in putting the material in a succinct way to that judge, with his slant on it. She did not come to that with an open mind. She knew what result she wanted to get and she fought me tooth and nail to stop me getting any information. She stopped me looking at the husband’s material, protected the husband from having to give answers, protected his lawyer, allowed his lawyer who was going to give evidence to sit there opposite counsel instructing whilst I was cross‑examining my ex‑husband.
I mean, it was just criminal through and through. I am not talking about errors of judgment. I do not think these things ought to come to this Court on appeal. These are matters of national significance in that the court, which is supposed to be a court under Chapter III of the Australian Constitution is not any longer, if it ever was, such a court, that it must be disqualified, at least in my matters, but I think more generally, from being given that authority.
I wrote to the Chief Justice very early on in the piece once I started litigating myself, putting to him that in my experience sitting in the courtroom, listening to what was going on, his judicial officers were not making judgments according to law, either they did not know about it or they did not know that they should follow the law and that I was prepared to work towards educating them because I have a background in education, and I asked him to tell me how best I could go about making that contribution.
The answer came from his assistant, I suppose, Justice Frederico, who is in charge of administrative matters in the southern region, which said, “I am sorry, because you still have matters before the court we cannot talk to you about any of this”. It is not just in my matters, your Honour. What is happening in the Family Court can be seen in my matters very clearly because I have been able and have spent a lot of effort on informing myself and placing material before the court and there would not be too many cases where a litigant in person has done as much as I have to get past the intimidation and repeatedly put applications before that court, including allegations that previous hearings were conducted contrary to law.
It only brings further anger from the court. It is impossible for me to have relief according to law if I pursue that relief in that jurisdiction and this encompasses not just the Chief Justice and Justice Frederico, but it encompasses Justice Dessau, Justice Brown is the latest, Justice Smithers who is at the head of that little subgroup, his two proteges who are Justice Guest and Justice Carter; there is Justice Ellis who is in charge of appeals who sat presiding at my last appeal and even the two judges who seemed so reasonable during the hearing, when you read what they say in the judgment as opposed to what is in the transcript, you will see that even they have been influenced, and that is Justice Finn and Justice Moore.
Prior to that I had a Full Court hearing before three judges. You would not believe that it really was a Full Court of a superior court, it was such a sham. It was Justice Coleman, Justice Lindenmayer presiding and Justice Dessau. Justice Dessau sat even though she knew she was interested. She had been the judge in charge of case management the whole way through whilst I was in the court with my proceedings. She had been a personal friend of the husband’s then solicitor, who was Peter Szabo. She had in 1998 written that forward to his latest publication about family law.
I had applied, written to and rang and tried to get some change in her not being on the Bench. I tried to get it through the principal registrar and through the appeals registrar and I was told by the principal registrar, “Well, that seems that is very unusual. They should know about it in the registry in Melbourne”. And I said, “Yes, but it is your job to tell them and ensure that it happens”. And she said, “I have no such powers”.
I put in an application to the principal registrar summarising most of the concerns that I had about her having in the past refused to exercise her powers, which are in legislation, they are very clear there, but the court refused to accept filing of that application. The principal registrar refused to take any action.
Action was finally taken by the new chief executive officer with the help of the Commonwealth Ombudsman asking questions and, finally, a couple of those issues were resolved, that is, Pia Marrone as appeals registrar took it upon herself, and I do not think she did it of her own volition, I think she is directed to do it, to not progress my appeal, that one SA87 of 1999, about my arrest, et cetera, she simply would not progress it to the stage of even settling the index. That was six months. What reason did she give? She had become aware that Tamara was gravely ill in hospital and she wished to give Tamara time to recuperate.
Now, (a) if Tamara is gravely ill, then she certainly needs maintenance; (b) I never told her that Tamara was in hospital because I do not talk to her because she yells at me; and, most importantly, Tamara is disabled and she takes no part in the litigation. She does not see the documents. She does not go to court. So what difference does it make whether she is at home sick or whether she is in hospital sick? Whom was she going to do this favour to? Certainly not to Tamara and not to me.
Now, that court does not have a principal registrar that exercises any of her powers. It has no one to supervise the listings or the way the registrars exercise their powers. Their Chief Justice knows about this. He knows that she has no listed contact number. You ring a registry, anywhere. You mention “principal registrar” and they say, “Who is that? We don’t have a listing for this person.” This is a public officer without any resources to do her job. Her powers have been usurped by the Chief Justice and reallocated to other people. Some of them have not been relocated to anyone because no one else has the power to direct registrars; only the Chief Justice or a judge that he directs can do it, or the principal registrar. The Chief Executive Officer thinks that he has the power.
Now, I mean, the whole court is run along the lines – and I hate to say this because it is emotive – of a family business such as a Mafia. If you do not do things their way, if you try to rock the boat, you will be out on your ear and you will suffer the consequences, whether your appeal – whether it comes back from the High Court after a special leave to appeal hearing, whatever the directions are, you can be sure that they will not follow them, in essence, even though that it might be a sham following of the orders.
As far as being able to put precedents before the court is concerned, they take no notice of it. They know that it is there. As far as sections of the legislation being cited or if you put rules, consolidated rules before them, or if you put before them arguments based on published case management guidelines which are directions of the Chief Justice, they just laugh at you, including the last Full Court – no, not the last Full Court, the Full Court before, Justice Lindenmayer. Just because there is some sort of direction of the Chief Justice that this sort of matter should come before a justice of the appeal court does not mean that Justice Smithers did not have jurisdiction to hear the matter. You know, he heard it; he has full jurisdiction - if he decided to dismiss the matter, whilst the child and the mother were both not present.
There was extensive medical evidence that both would be unable to attend because of medical reasons. There was extensive application for his disqualification by way of actual bias demonstrated in numerous past hearings. You know, it just goes on. What does he do? In the absence of the parties he simply dismisses appeal‑related applications. He is of the general division. You know, it is impossible to get anywhere.
So I appealed to this Court to simply remove all, the whole of my cause, and, as I say, the basic cause of action is maintenance for the disabled adult child, both for disability and for education. When we started the litigation she was able to attend school. In 1997 she did her final year of secondary education and she tried her hardest and did brilliantly until she fell very ill towards the end of that time. She has not been able to recover. Monash University is holding a place for her. She secured that place on the basis of audition prior to any examinations being held, et cetera, and she was given a letter of first round offer.
When time came for the publication of those offers she had no offers published, not from any course or any institution. So I tried to find out why, and this why. Her father had the audacity to be in touch with the selection authorities at Monash University and wrote to them that Tamara would be a liability, that she had no intention of actually attending and doing anything, but I, her mother, was pretending that she would so that I could collect the maintenance tax free.
He assured them that it would be in their best interests not to accept her, despite the first round offer letter that she had. I had to fight Monash University on this. She ended up having a published second round offer. The husband’s lawyer complained that I had told a less than truthful fact about the type of offer that she was given. The husband, in fact, contacted her principal at Sandringham Secondary College after he was told by me in writing that Tamara had secured her VCE because she had been granted that on the basis of work requirements, et cetera, and that she had applied for university courses.
He got in touch with the principal and wrote to him in absolute anger, for pages worth, about how, even though he thinks it is in her best interests to do so, he was doing the wrong thing and he would live to regret it because, in fact, she should get her qualifications on her own merit and she should not be extended any special leave in any way.
HIS HONOUR: These are matters, are they not, which go more to the merits of the issues between you and your former husband ‑ ‑ ‑
MRS BIENSTEIN: Yes, that is correct but ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ rather than to whether I should remove the matter, I think.
MRS BIENSTEIN: Well, if I could just put it this way. When I tried to put these arguments and that evidence to the courts in the Family Court, they refused to allow me to do so. They will not admit them into evidence. They will not allow me to ask questions of the husband about it. They simply will not let me put my case. My case is extensive. It is overwhelming. They will not admit any evidence, will thwart my cross‑examination of the lawyers and of the respondent and of his wife and of his other associates.
They will not allow me to see any of the documents that are there pursuant to subpoena. They have been there since late 1998 and I have not seen them. 1998? Yes, that is right, after Justice Carter’s thing. Justice Guest does not deny – in fact, he admits that he intervened in the Magistrates Court to influence – and he actually succeeded in influencing the Deputy Chief Justice, who is currently Acting Chief Justice, to not determine my matters – Tamara’s application was before him – for urgent interim maintenance pending my appeal from Justice Carter’s orders.
He made sure that not only would they not determine the application but that they would not allow me access to Tamara’s documents. They would not allow me to become party to the proceedings and that they would transfer it. Of their own motion, for which they have no basis in law, not only transfer it to the Family Court, but to transfer it for hearing before Justice Guest on a particular date at a particular time.
Now, that is the most criminal thing you can ask for, and he does not even deny it. In fact, he seems to be justifying it on the basis that he seemed to think that he was trial judge. When Judicial Registrar Nikakis was hearing a matter of another application by Tamara against her father, the matter was part heard when Justice Guest organised for his court officer to walk across to the other court and to ask the Judicial Registrar to discontinue the hearing and to transfer it to Justice Guest, to himself, to determine, and then he proceeded to determine it.
He intimidated the counsel that was representing Tamara in her absence, refused to consider her application for adjournment, even though he had medical evidence before him. Look, it is impossible for me to – whether I am represented or not, it is impossible for me to pursue any relief in that court. They see each proceeding by Tamara as a separate cause of action. They do not see it as part of the same cause of action. They consider that just because she had withdrawn her application for urgent interim maintenance, that takes care of all the things that have happened in her applications and, therefore, they will not hear any appeals regarding those hearings, even though those appeals are based not just on normal appeal powers, but the power that had been given to them to hear bias applications.
I cannot win there. Justice must be served and the rule of law must be upheld. It is for the sake of the whole country. It is of national interest as well as our personal interests and I feel on that basis, which is the basis upon which constitutional removal motions are decided, I would ask this Court to remove those proceedings.
HIS HONOUR: Yes, thank you, Mrs Bienstein. May I ask you some matters of fact that you may be able to help me with?
MRS BIENSTEIN: Would you just excuse me for a moment?
HIS HONOUR: Yes, of course.
MRS BIENSTEIN: I need to get a refresher glass of water.
HIS HONOUR: Do you wish me to take a break while you do so or are you ‑ ‑ ‑
MRS BIENSTEIN: No, no. I will just walk across to the other side.
HIS HONOUR: Yes.
MRS BIENSTEIN: Yes, okay. I am ready.
HIS HONOUR: The orders which Justice Carter made on 12 November 1998, which include this order under section 118, have they been the subject of an appeal to the Full Court of the Family Court of Australia?
MRS BIENSTEIN: Of course they have.
HIS HONOUR: Is that the appeal that was dealt with by the reasons for judgment of Justices Ellis, Finn and Moore on 30 June 2000?
MRS BIENSTEIN: Yes. It is all in exhibit HB5.
HIS HONOUR: Yes. I am just really confirming that I am understanding what I believe I am reading.
MRS BIENSTEIN: Yes, that is correct.
HIS HONOUR: And in the course of those reasons, that is, the reasons of 30 June 2000, did those judges deal with this section 118 order?
MRS BIENSTEIN: They dealt with it briefly. They refused ‑ ‑ ‑
HIS HONOUR: Can you just point me to where they dealt with it? That would help me.
MRS BIENSTEIN: Yes, yes. I will try and find that, your Honour.
HIS HONOUR: If you give me the paragraph number, if you can find it.
MRS BIENSTEIN: I am trying to find it.
HIS HONOUR: It takes a little time to find, I suspect.
MRS BIENSTEIN: Yes. I suppose paragraph 97 on page 30.
HIS HONOUR: Page 26, paragraphs 85 and following; is that it?
MRS BIENSTEIN: The conclusion – sorry, which page number?
HIS HONOUR: Page 26.
MRS BIENSTEIN: Page 26. I will have a look at that.
HIS HONOUR: Of the judgment, paragraph 85 and following; is that right? That seems to me to be where they deal with the question.
MRS BIENSTEIN: Paragraph 82, I cannot see it in 82. Did you say 82?
HIS HONOUR: Paragraph 85.
MRS BIENSTEIN: Paragraph 85, sorry.
HIS HONOUR: At the bottom of that page.
MRS BIENSTEIN: Yes.
HIS HONOUR: Do you see?
MRS BIENSTEIN: The order pursuant to section 118?
HIS HONOUR: Yes.
MRS BIENSTEIN: Yes, I see that. Her Honour commenced her consideration ‑ ‑ ‑
HIS HONOUR: That seems to be where they dealt with that; is that right?
MRS BIENSTEIN: The Full Court – yes.
HIS HONOUR: Yes, that seems to be it.
MRS BIENSTEIN: Yes. May I speak to that or do you just want to know where it is?
HIS HONOUR: I am really just asking to find my way around the documents and make sure that I have found my way around the documents the right way.
MRS BIENSTEIN: Yes, I would say that that is – yes, and the conclusion that is reached also refers to that, which is paragraph 97 on page 31 of those reasons for judgment.
HIS HONOUR: Yes, I understand that.
MRS BIENSTEIN: I should point out that those reasons for judgment did not take into account any of the arguments that I put, including the written arguments and the authorities.
HIS HONOUR: Yes. Then the other matter of fact that I wanted to check with you, appeal SA87, which is the papers in which your exhibit HB1 – have you exhibit HB1 to hand?
MRS BIENSTEIN: Yes, I think that they are HB1. Yes.
HIS HONOUR: Do I understand that is listed in some way on 5 December? Is that Tuesday, 5 December?
MRS BIENSTEIN: Yes, that is correct. Yes.
HIS HONOUR: Is that right?
MRS BIENSTEIN: Yes, it is, yes. I dare not walk into that court.
HIS HONOUR: Yes, and I would understand that appeal to include complaints about what Justice Guest did in ordering your removal from the court and lodging you in the cells. Is that right?
MRS BIENSTEIN: Of course.
HIS HONOUR: Yes, and I assume that one of the ways in which you would put that series of complaints – and I emphasise “one of the ways”, not the only way – is that there is a question about whether the judge had power to do what he did, leave aside whether, if he had power, there was occasion to exercise the power? Do you see the two questions?
MRS BIENSTEIN: Yes, of course.
HIS HONOUR: That there was a question of power and whether there was an occasion to exercise it.
MRS BIENSTEIN: Yes.
HIS HONOUR: But I understand you to raise in that appeal the question of whether there was power to do it at all. Is that right?
MRS BIENSTEIN: Well, there is no power to do it at all.
HIS HONOUR: I understand that is your contention, but you want to raise that issue in the Full Court of the Family Court by this appeal.
MRS BIENSTEIN: Well, I would like to, but I will not be allowed to.
HIS HONOUR: Let me just understand a little more fully the way in which that contention may arise. At the end of those proceedings before Justice Guest there was an order for costs made, was there not?
MRS BIENSTEIN: Yes.
HIS HONOUR: At one level – again I emphasise one level, not the only level – an appeal is an appeal against that order for costs.
MRS BIENSTEIN: Yes.
HIS HONOUR: A possible point of view may be that the judges dealing with that question of costs went astray because of those intervening events which saw you in the cells and went astray in a way that denied procedural fairness to you in dealing with the matter which led ultimately to the order for costs, and denied procedural fairness to you because, as I understand the way you would want to put the case in part, there was no power to make an order that you be taken from the court and lodged in the cells in the way in which happened. Now, is that one of several sets – but one set of issues that would arise on the hearing of that appeal?
MRS BIENSTEIN: I would never in my wildest dreams have contemplated putting it that way. The order for costs had its own problems. In fact, the hearing of the ‑ ‑ ‑
HIS HONOUR: I know there is a set of problems you would want to say exist about that, and I am not for a moment dealing with that ‑ ‑ ‑
MRS BIENSTEIN: But why would she expect that I would want to put it in that way?
HIS HONOUR: Because it may get this question of your confinement before the Full Court and if it does not ‑ ‑ ‑
MRS BIENSTEIN: But I will not be able to be there unless they assure my safety.
HIS HONOUR: Well, I have not had the benefit of any argument to the contrary of yours. Judges get a bit wary of making statements about the law when they do not have competition between arguments and I have therefore only looked briefly at this question of the powers of a judge of the Family Court to do what Justice Guest did. I, therefore, cannot, and I do not, express any concluded view about it, but like all of these problems the starting point, because you start with the Act – you start with the Family Law Act ‑ ‑ ‑
MRS BIENSTEIN: There is no power in the Act.
HIS HONOUR: Well, you start with the Family Law Act. You start at section 35, I think it is, which give the powers for contempt. You then go over to section 112AP which deals with certain aspects of the contempt power. You go to Order 35 of the Family Law Rules which deal with these matters.
MRS BIENSTEIN: Your Honour, if I may interrupt at this point? I have put the legal argument in writing referring to all of those, plus judgments, and I sent it to the Chief Justice, and he refused to even consider the argument ‑ ‑ ‑
HIS HONOUR: Yes, I understand that.
MRS BIENSTEIN: ‑ ‑ ‑after having already decided that he does not intend to give me any response additional to what Justice Frederico wrote.
And, I will remind your Honour what Justice Frederico wrote, that there is inherent responsibility for the judge to conduct – to ensure that the conduct of proceedings is under control - I think that it is something like that – but, “inherent responsibility of the judge” are the words that are used.
HIS HONOUR: Yes.
MRS BIENSTEIN: If there were a power anywhere in legislation, the internal investigation of the Federal Police, the Commonwealth Ombudsman, Justice Frederico or somebody else would have come up with it.
HIS HONOUR: I understand all that.
MRS BIENSTEIN: There is no legislative power.
HIS HONOUR: And all you are saying ‑ ‑ ‑
MRS BIENSTEIN: And, I am saying that a statutory court has no inherent powers in any case. They are bound to the limits of the legislation.
HIS HONOUR: Mrs Bienstein, do not misunderstand me. I am not contradicting anything you say.
MRS BIENSTEIN: So, I cannot see how you can put an alternative view, any way.
HIS HONOUR: I am not contradicting anything you are saying. What I am saying to you is that, at the moment, it is not self-evident to me that what you say is wrong. Now, it may be wrong, I do not know, but I am not saying that it is self-evident that it is wrong. Right?
MRS BIENSTEIN: Yes.
HIS HONOUR: And I am saying to you, also, that these are issues which, on one view of matters, would seem to me to arise in the course of the appeal that is fixed for hearing on 5 December. Now, I understand the response that that evokes in you that “I have put all these matters and I will not be able to put them again” and so on. I understand all that. All I am trying to do is to isolate in my own mind, and for the benefit of anyone else who may choose to read the transcript of the proceedings that we are having this morning, that there seems to me to be a question that might require some consideration. That is all I am saying. Yes?
MRS BIENSTEIN: Well, the powers that be have made it plain that they will not consider them.
HIS HONOUR: Well, there we are.
MRS BIENSTEIN: I have to return to the fact that I cannot appear in that court because it threatened – they threatened my liberty, health and personal safety and they refused to assure me that I will be free of intimidation, of summary arrest and of – dare I say it – torture. They refused to assure me of that. I cannot, and I will not, appear in that court. I cannot see how the High Court can expect me to do it. On a constitutional basis I have a right to come before an impartial tribunal set up by law that is going to determine my rights according to law in a fashion which follows procedural justice and respects my person and my rights – human rights and civil rights – and even if I do succeed at that appeal it will not bring me the relief that I need.
I will still be injuncted. I will still not have access to any information that will allow the court to make a proper judgment regarding the amount of maintenance that should be paid and arrears of maintenance. I will not be allowed to put argument before the court that all costs should be paid by the husband’s lawyers. I have huge evidence that not only were his applications without basis in law but that they were made for collateral advantage, that during the course of litigation and intervening periods between those, that his lawyers acted to intimidate and harass the child and me and our lawyers, that they had acted improperly in using the court process for discovery, subpoenas, disclosure, all sorts of things. It is enormous evidence and I am not allowed to put it to the court.
It is impossible for us to get relief, according to law, for Tamara to be protected, according to law, for me to be able to bring applications in my own name before the court and the court does not care because it knows that the federal Attorney-General, Daryl Williams, has made sure that no complaints of criminal conduct against judges will be investigated and no criminal prosecution will ever take place. And I have all of this documented. And, so, they do not give a damn what I say or what I do and they will keep on doing what they are doing, only to a greater extent. The Chief Justice does not care. He is not going to respond to any of my material. He handed it over to his chief executive officer to respond who simply said, “Well, there is nothing further I can add. Unless you bring new issues before me, I will not respond”.
I mean, the issues that I have brought before him and before the Chief Justice have not been resolved. If they had, it might be reasonable for him to say that. Where else am I going to turn?
HIS HONOUR: Now, Mrs Bienstein, you are a little upset. I do not wish to cut you off from saying anything further that you wish to say. If you would like some time ‑ ‑ ‑
MRS BIENSTEIN: Your Honour, I do not have anything further to say at this stage.
HIS HONOUR: Yes.
MRS BIENSTEIN: But, if you – no, I do not need further time. I will settle down. Thank you for the offer.
HIS HONOUR: Yes.
MRS BIENSTEIN: What I would like is to have some feedback from you as to how you see the outcome of this application and the reasons for that so that I can respond to that.
HIS HONOUR: Mrs Bienstein, once I begin to give my reasons for judgment that will be it. My reasons ‑ ‑ ‑
MRS BIENSTEIN: No, I am asking you to tell me what you propose doing before you pronounce the judgment so that I can ‑ ‑ ‑
HIS HONOUR: No, Mrs Bienstein, that is not the way in which this Court operates. I will hear anything further that you wish to say, but once I begin to give my reasons for judgment, I will not enter further debate with you.
MRS BIENSTEIN: I understand that, your Honour. I am asking you if you have reasons that you have not enunciated yet, that you give me the benefit of hearing those before you pronounce so that I may respond to them and perhaps argue the points.
HIS HONOUR: There are three things which I think we have debated already but which I raised particularly so that there should be no doubt about them:
(1) To remove the whole cause is not, I think, a practical outcome if the cause is as you describe it, being the cause of whether your daughter, Tamara, should have maintenance, taking account of her disability and her educational needs.
So far as the section 118 order is concerned, I am troubled by the fact that Justice Carter made the order and that order has been the subject of an appeal to the Full Court of the Family Court which has been heard and determined. It is not evident to me that it is appropriate to remove the cause on that account because, at the moment, no question arises about whether the order should be made. It has been, and supported on appeal, you would say, wrongly.
I am troubled about removing that part of the matter which raises the questions of validity of the steps taken by Justice Guest to have you removed from court and placed in a cell because those are matters which, it seems to me, can be, and ordinarily would be expected to be, the subject of debate on the hearing of appeal SA87 which is fixed for hearing on 5 December.
Those are the three matters which presently trouble me. Is there anything further you wish to say?
MRS BIENSTEIN: Okay. May I address the second one of those first?
HIS HONOUR: By all means.
MRS BIENSTEIN: Section 118 of the Act provides that there be power for a single judge, whilst hearing matters, to take away civil rights which are enshrined in international treaties, including the Human Rights and – I cannot remember it any more. But in any case ‑ ‑ ‑
HIS HONOUR: International Covenant on Civil and Political Rights, I think.
MRS BIENSTEIN: Yes, something like that. Yes. That ever person has equal right to present before the court. So, a single judge can make that determination to remove civil rights and liberties from a person without any other protections being present. It is not the subject of application by, you know, someone – in the High Court for you to be able to do that there has to be an application, I think, from the Principal Registrar, or someone like that, and it would then be made and I suppose transcript will be available for everyone to read and it would usually be made by more than one Judge at a time. There are often people sitting in Court here.
In the Family Court there are no such protections. Neither the judgment nor the transcript is published so no one can peruse that. There is no need for anyone else to have been involved in making that application, aside from one of the parties, and there is usually no one else in the court and, even if they were there, there are incredible restrictions on publication of anything. And, in fact, I have contacted a whole host of news groups and not one of them will touch any matter, no matter how serious, that is in the Family Court. They will not report it. So, even though, supposedly, they are allowed to report it so long as they do not identify anyone, the fact of the matter is that the Family Court made it clear that anyone who publishes anything is going to be hauled before them for contempt and will be fined huge amounts and their lawyers advise them not to take the risk.
So, there are no protections that are usually given to people when their civil liberties are to be in some way encroached on by orders of the court.
When Justice Carter made this order, she did not simply refer to section 118, she said she also relied on an inherent power. There is no such inherent power. She had put to her by opposing counsel a case in law which is Vlug and Poulos and he pointed to something in the margin that said – and you will see that on the transcript. If you want, I will show – it says here that even if every application has a good basis in law, it is still possible to consider that the totality is in some way vexatious, because she could not point to any part of my applications that were not well based in law, but she was determined to stop me.
Counsel said to her: “And I would like you to make that order as wide as possible.” She said why would she take any action against anyone other than the husband? He says, “Who knows?” And we all know what the reason was. I was seeking to take contempt action against the husband’s lawyers. I told them about it. I hired counsel to tell me whether I had a case in law for it. He turned out to be a good buddy of the husband’s counsel, and the two of them made sure that that never came to even my getting the advice, even though he had taken the brief, let alone it ever coming to court.
In other words, there was a conspiracy to ensure that the husband’s lawyers were protected from possible actions. It was not just a matter of, you know, just taking – stopping me taking action on a particular type of matter against the particular person, which is what Vlug and Poulos say you have to do; you have to restrict that order. The order was made in the broadest possible way. The purpose of the order was to stop me being able to take action; to force Tamara, a disabled person, who should never have to take part in this in any case because she is the child of the marriage, to renegotiate with her father. A court of law does not have power, rather than determining the application according to law, to say, “Yes, in law, this is so. I should make these orders but I am not going to. I am going to turn the law on its head. I am going to force this child to do what the law says she should not have to do, I am going to force her to go back to negotiation, instead of having it before the court.” A court of law does not have power to force any other process to resolve that conflict. They have to resolve the conflict that is brought to them.
Now, look, there are many aspects of this but the most important part is that there is no constitutional validity for section 118 as it stands because it has no guarantees of safety and it gives inordinate power to a single judge, without those protections, to restrict and remove civil liberties which are enshrined in international covenants and, I believe also, they stem from the Constitution, Chapter III.
I will go back to this thing, Justice Kirby’s, I think it is:
The establishment of an integrated Judicature by Ch III of the Constitution undoubtedly carries with it various affirmative and negative requirements and implications –
of the court. Those implications must be that human rights and civil liberties are not encroached on summarily without any of the protections that are normally offered in criminal proceedings which have the result of punishment by removing civil liberties. I believe that there is no inherent jurisdiction and that section 118 is constitutionally invalid.
Furthermore, the order that supports it in the Rules, even after it had been amended after Vlug and Poulos’ judgment came down, because it was so extensive giving the power to the judges to do whatever they pleased, but it has since then been amended to allow the Marshal of the Court to make application, the Marshal. The Principal Registrar, a person with legal training, has no say in this. The Marshal of the Court who directs that there will be no feeding facilities, no meal facilities, no contact, no cameras in the cells, that person can direct or apply to the court that a particular person be injuncted under section 118. I mean, the mind boggles at what sort of justice system that is. Yes, I think that is constitutionally invalid as well.
The whole of Justice Carter’s trial and the whole of her reasons for judgment are self-evident in their criminality and I do not believe that this is just a matter of appeal. This is a matter of criminal proceedings that should be taken on behalf of the Government of Australia. They simply will not uphold the law, and my rights as a person who has been injured by contravention of those laws, deliberately made by people who are supposed to be upholding the law. So, section 118 is not just a matter of actually appealing, it is a matter about which I seek to make a constitutional argument and it should be taken into this Court on that basis.
Now, what was the third point that you made, your Honour, because I have forgotten.
HIS HONOUR: The appeal in SA87 is listed for hearing on the 5th.
MRS BIENSTEIN: It is listed for hearing. As your Honour well knows it is a costs matter. The correspondence with the Family Court about this with the Chief Justice is appended to these. I think you would have read them. It is also in an affidavit that I lodged in the Family Court. I think it is very obvious that the Chief Justice does not intend to have the court, the Full Court or any other court, hear those determinations. Even though ex-curial statements cannot be taken as being determinative of these issues, I do not think he will care and I do not think his Full Court will care. They will simply say that it has been determined and that is that.
Again, the matters are criminal in nature and the High Court has a responsibility to ensure that the other courts in the land conduct their business according to law. This is a supervisory role that the High Court has, and there is such compelling evidence that not only has that court acted, on numerous occasions, in violation of the law and targeted Tamara and me as victims in brutalising us, but also that they intend to continue. So, it is the role of the High Court to act on this evidence and determine my application for removal on the basis of that responsibility to supervise the administration of justice in other courts in the land.
I will not be able, as I have already said at least on two occasions, to present in that court at that hearing or any other. I have been very ill this whole past year because of what I have been through and I cannot afford to put my health at risk any further. My daughter depends on me every day, every hour. I will not do it and the High Court has a responsibility to ensure that my access to justice is restored according to law. It will not happen in the Family Court. I must have access to a court that will hear me; that will give me the hearing that is required according to law; that will respect my dignity and my rights, as a human being; where I can put my case without being threatened with lock-up overnight or with anything else.
If this High Court cannot see their way to removing it, I will seek to appeal that decision to the Full Court of the High Court because I feel these matters are not just matters in relation to Tamara and me – although even if they were, the High Court would still have responsibility to exercise its supervisory power and to ensure that courts in the land behave according to law, but it is also of national importance that the corruption which, over the years that I have been litigating there, has grown expansively during that
time, is arrested and that law and order are restored so that there can be at least a semblance of justice in that place.
So, my aim is, first and foremost, to make sure that Tamara and I are provided with relief according to law: present, future, as well as arrears; that the lawyers who represented the husband and acted very irresponsibly, illegally, with the assistance of the court, have costs awarded against them. I am not allowed to put that case before the Family Court at all. There is a fairly recent judgment all about this that I rely on in White Industries. That my character and reputation are restored. I have been maligned without any evidence in a published judgment. My character has been smeared for all to see and it has had incredible repercussions. All the judicial officers and the registrars and even people at the filing counter were jeering at me because of what Justice Carter had written in her judgment about me, that I am not even worthy of relief according to law because I am such a disgracefully awful person, and the husband is so wonderful that he should not be bound by any orders because they would be an unfair and inappropriate intrusion into his life. And what did subsequent judges and registrars hearing my matter say? “Well, the husband must be protected from you. I cannot afford to give you leave to file another application.”
So, I will conclude my arguments at this point and simply say if your Honour wishes, there is the actual reasons for judgment that Justice Carter handed down on 12 November 1998, and you could see for yourself just what sort of illegalities and libel is involved in all of this. It has had the effect of the lawyers representing the husband refusing to communicate with me. Even though I have power of attorney for Tamara, they wanted the right to communicate directly with Tamara.
I sought intervention by the Legal Ombudsman. The Legal Ombudsman looked at this judgment and said, “It looks like, according to the judge, they’re right. You do not have the power to represent or have any part in these proceedings. They don’t have to communicate with you.” It has had the effect that in the Legal Profession Tribunal they take the same approach. I cannot make complaints about lawyers to the Law Institute or the Legal Profession Tribunal because of Justice Carter’s judgment. There have been other ramifications too. I have to have my honour restored. It will not happen if I take it before the Family Court, and the Chief Justice will make sure of that. I close my arguments.
HIS HONOUR: Thank you, Mrs Bienstein.
Mrs Helen Bienstein seeks an order that the whole of the cause in proceedings numbered ML7725 of 1991 and its associated appeal, SA87 of 1999, pending in the Family Court of Australia be removed into this Court pursuant to section 40 of the Judiciary Act 1903 (Cth) on the ground that they arise under the Constitution or involve its interpretation.
In her amended notice of motion, Mrs Bienstein describes the questions which she contends the proceedings I have described raise. Though lengthy, it is desirable to set those questions out in full because, without doing so, it may be thought that attention has not been given to the several different ways in which the applicant seeks to support her application.
The questions are described as follows:
1) That Helen Bienstein’s arrest without warrant which took place in the Family Court of Australia at Melbourne on 28 October 1999, contravened operative Victorian State legislation, being the Crimes Act 1958 ‑ section 457:
“After the commencement of the Crimes (Powers of Arrest) Act 1972 no person shall be arrested without warrant except pursuant to the provisions of (a) this Act; or (b) some other Act expressly giving power to arrest without warrant.”
and thereby violated Chapter V section 118 of the Constitution, which requires:
“Full faith and credit shall be given, throughout the Commonwealth to the laws … of every State.”
2) That powers of a Statutory Court, that is a Court established by parliament pursuant to its legislative power in section 51 of the Constitution, extends only so far as and no further than that legislation provides, therefore forbidding the ordering of an arrest for which there is no explicit statutory power.
3) That Section 118 of the Family Law Act 1975 and related Order 40 Rule 6 of the Family Law Rules are Constitutionally invalid.
4) That Chapter III of the Australian Constitution implies that every person, without distinction, has equal access to its Court, to protection by its laws, to equally timely determination of his/her rights according to law, and to the benefit of litigation according to law;
5) That the character of a “Court” within the meaning of Chapter III of the Australian Constitution demands that the Court accept, process and determine each and every properly made application, that it queue the applications without bias and that it determine the applications according to law, and that a “Chief Justice” who openly refuses to comply with these principles is guilty of “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution;
6) That a “Chief Justice” who refuses to list for urgent determination a respondent’s materials which were deliberately ignored at prior hearings by members of his “Court”, is guilty of “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution;
7) That a “Chief Justice” who undermines and/or usurps the Principal Registrar’s statutory powers is guilty of “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution;
8) That the publishing by any “Judge” or “Justice”, but especially by the “Chief Justice” of a Chapter III Court, of his decision to adjudicate in a matter which he has publicly pre‑judged, constitutes “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution;
9) That a “Chief Justice” who openly refuses to carry out an Appeal Court’s order for re‑trial is guilty of “misbehaviour” within the meaning of section 72 in Chapter III in the Australian Constitution;
10) That the Australian Federal Police operation in the Family Court of Australia is contrary to the Australian Constitution;
11) That the character of a “Court” within the meaning of Chapter III of the Australian Constitution prohibits its deployment of police officers who simultaneously retain police powers, exercise powers of that Court’s Marshal and are subject to directions by that Court’s members, officers and staff;
12) That any and all existing agreements between the Family Court of Australia and the Australian Federal Police providing that Federal Police Members operate in the Family Court under Family Law legislation and/or under direction of the Family Court is Constitutionally invalid;
13) That the character of a “Court” within the meaning of Chapter III of the Australian Constitution is such that all persons appearing therein must be assured of safety from intimidation, from summary detention and from torture, and that a “Court” whose “Chief Justice” and Chief Executive Officer refuse to give such assurances is disqualified from functioning as a Chapter III Court;
14) That if during the course of a Court hearing a litigant in person seeks to make oral application that the presiding Judge is disqualified on the basis of a history of actual and perceived bias, the presiding Judge is obliged to hear that oral application without undue interruption, diversion or intimidation, and that conduct of a “Judge” or “Justice” that seeks to obstruct such presentation amounts to “misbehaviour” within the meaning of section 72 of Chapter III of the Australian Constitution;
15) That a Court is required to determine each matter on its own merits based on the law and evidence properly admitted before it, and that a “judge” or “Justice” within the meaning of Chapter III of the Australian Constitution who refuses to properly consider relevant points of law and to admit otherwise admissible evidence, whilst preferring to defend the effect of a colleague’s orders and to rely on inadmissible gratuitous comments contained in that colleague’s judgment, is guilty of “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution.
16) That a “Judge” or “Justice” within the meaning of Chapter III of the Australian Constitution must afford procedural fairness to all parties without distinction, must conduct proceedings in an adversarial manner, must hear and consider each party’s case and must not deliberately hinder or obstruct any party’s presentation of their case, and that conduct deliberately designed to be contrary to these rules amounts to “misbehaviour” within the meaning of section 72 in Chapter III of the Australian Constitution;
17) That a “Judge” or “Justice” within the meaning of Chapter III of the Australian Constitution is not permitted to interfere with proceedings pending in another Court and/or with hearing commenced before another judicial officer and/or to “arrange” for those proceedings to be transferred for determination directly to himself, and that such actions qualify as “misbehaviour” within the meaning of section 72 of Chapter III of the Australian Constitution;
18) That the character of a “Judge” or “Justice” within the meaning of Chapter III of the Australian Constitution does not permit him/her to intimidate or to direct the unlawful detention and/or torture of any person who appears before him/her, and that such actions qualify as “misbehaviour” within the meaning of section 72 of Chapter III of the Australian Constitution, and that a “Chief Justice” who openly condones such behaviour by his Judges is also guilty of “misconduct” within the meaning of section 72 of Chapter III of the Australian Constitution;
19) That materials contained in the pending Family Court applications, in the ML7725 of 1991 Bienstein Family Court file and its related appeal files, and in correspondence with the Family Court, include extensive and compelling evidence of the Family Court’s:
a) actual and further threatened unlawful assault of Helen Bienstein’s liberty, health and personal safety, such as to disqualify it from further functioning as a Chapter III Court in relation to Helen Bienstein’s matters; and
b) actual and further threatened unlawful treatment of the disabled adult child Tamara Leah Bienstein, such as to disqualify it from further functioning as a Chapter III Court in relation to Tamara Leah Bienstein’s matters; and
c) actions designed to unlawfully place the husband and his lawyers above the law whilst blocking Helen Bienstein’s Constitutional rights to fair process, to judicial determination and to the benefits of litigation as an Australian, as a party, as a litigant in person, as a parent, as a care of a disabled person and as Power of Attorney for her disabled daughter; and
d) actions to unlawfully place the husband his lawyers above the law whilst blocking Tamara Leah Bienstein’s Constitutional rights to the benefit of litigation and to protections accorded children and disabled or infirm persons in the legal process;
20) That, in relation to the Bienstein matters, the gross misconduct of the Family Court of Australia and of its Chief Justice Alastaire Nicholson calls for the revocation of the Constitutional authority normally accorded a Chapter III Court and its Chief Justice;
21) That, given the seriousness of the circumstances in regard to the interests of the parties and of the public interest, it is appropriate for the High Court of Australia, pursuant to Section 40(1) of the Judiciary Act, to remove the whole of the Bienstein cause of action from the Family Court for independent determination of all its outstanding issues without remittal back to the said Family Court of Australia;
It is as well to say something further about the background of the litigation which gives rise to the application for removal. As is apparent from the statement of questions said to arise in matters pending in the Family Court of Australia, the matters concern proceedings brought between the former parties to a marriage. Those matters centre upon, but are not restricted to, questions concerning the provision of maintenance in respect of a child of the marriage, Tamara Leah Bienstein, who is, as that statement of questions records, a disabled adult.
In the course of oral argument of the present matters Mrs Bienstein, who appeared on her own behalf, described the causes of action between the parties as being basically for the maintenance of Tamara, taking account both of her disability and of her continuing educational needs.
As is also apparent from the statement of questions said to arise in the proceedings, Mrs Bienstein is dissatisfied with the way in which the Family Court has dealt with the several applications that she or Tamara have made in that court. She is of the opinion that the court has displayed bias and has intimidated her to the point where she considers that she no longer can obtain, in that court, a just determination of her rights according to law.
An order for removal into this Court under section 40(1) of the Judiciary Act can be made only if, not only is there a cause pending in a Federal Court, but also if that cause arises under the Constitution or involves its interpretation. It is necessary, therefore, to say something further about the two proceedings which are identified by the applicant in her notice of motion for an order of removal.
Proceeding numbered ML7725 of 1991 was, as I was informed in the course of oral argument, a matter which began in connection with the registration of an agreement made between the parties to the marriage under section 86 of the Family Law Act 1975 (Cth) as it stood at the time. Mrs Bienstein told me that the agreement that was registered was, on its face, an agreement which covered matters such as disposition of property and questions of access to, and custody of, children of the marriage.
There have, it seems, been several applications made to the Family Court after the registration of the section 86 agreement but made in the matter designated ML7725 of 1991.
On 12 November 1998 Justice Carter gave judgment in respect of various applications that were then pending in proceeding ML7725 of 1991. Mrs Bienstein has provided me with a copy of part of the reasons for judgment of Justice Carter and has offered to make available to me the whole of those reasons. The part of the reasons with which I have been provided include minutes of the orders which the judge proposed to make to give effect to the reasons which she published on 12 November.
The material filed in support of the application for removal does not include any copy of the certified order made by Justice Carter on 12 November 1998 but, for present purposes, it is convenient to act on the basis that the orders which were made substantially accorded with the minutes of order proposed by the judge. Three particular orders should be noted. They were, first, an order that:
Save with the leave of the Court, the wife [the present applicant] be and hereby is restrained from instituting or prosecuting any action, appeal or other proceeding under the Family Law Act.
And, secondly, that:
Nothing contained [in that order] shall prevent the wife from instituting or prosecuting any appeal against any of these orders.
Thirdly, after dealing with a number of identified applications the judge ordered that:
Save as aforesaid all extant applications be dismissed.
It would seem to follow that, as things stood at the conclusion of proceedings on 12 November 1998, there was then no matter pending in proceeding ML7725 of 1991. The judge had heard, determined and given final judgment in respect of all of those applications.
Mrs Bienstein appealed from the orders of Justice Carter. That appeal was heard by a Full Court of the Family Court of Australia constituted by Justices Ellis, Finn and Moore. On 30 June 2000 the Full Court published its reasons for judgment, in the course of which it dealt with the order restraining Mrs Bienstein from instituting or prosecuting any action, appeal or other proceeding under the Family Law Act.
The Full Court concluded that it could find no fault with the trial judge’s consideration of the authorities which guide the exercise of the powers which the trial judge had sought to exercise. This aspect of Mrs Bienstein’s appeal therefore failed. Again, on its face, it would seem that there may be some question whether there remains a cause pending in the Family Court of Australia in respect of the application for restraining orders of the kind made by Justice Carter.
While dealing with the subject of what aspect of proceeding ML7725 of 1991 may still be pending in the Family Court of Australia, it is as well to notice an application filed in the Family Court on 14 November 2000 in which, under the heading “Decrees sought”, there is sought, among other things, orders that “Section 118 of the Family Law Act 1975 and related Order 40 rule 6 of the Family Law Rules are Constitutional invalid.’ and that the court is using the provisions to defeat the disabled applicant’s and her mother’s rights and protections in law. That application, as the form of the order suggests, is made in the name of Tamara Leah Bienstein but is made, it seems, in proceeding ML7725 of 1991.
As is apparent from what I have said earlier, there are two proceedings which Mrs Bienstein seeks to have removed into this Court. The second is what is described as the “associated appeal”, that is associated with ML7725 of 1991 being the proceeding numbered SA87 of 1999. At first sight, that appeal appears to be an appeal against orders made by Justice Guest on 28 October 1999 and at first sight it may be thought to be an appeal concerned only with an order for costs made by that judge on that day. On closer examination, however, it is apparent that appeal SA87 of 1999 is a proceeding by which Mrs Bienstein seeks to agitate in the Full Court of the Family Court circumstances which led to Justice Guest saying, “Officer, will you take Mrs Bienstein to the cells please. You place, I find, that you are in contempt of court at the moment. I wish you to be dealt with for contempt of court.” Mrs Bienstein was, as I understand it, then removed from the court and lodged in the cells for some time.
Not only does Mrs Bienstein seek to agitate in the Full Court, by her appeal to the Full Court, the circumstances which led to the direction for removal and lodging in the cells, she would seek also to agitate the question of the power of the judge to give such a direction. While it may be doubted that Mrs Bienstein’s reference to the Crimes Act (Vic) greatly advances the contentions she would seek to advance in this respect, there is, at least to my mind, a question for investigation about the power of a judge of the Family Court to make a direction not simply that a person in court be removed from court, but that that person be removed from the court and lodged in confinement.
These are not matters which were debated in the course of the hearing this morning and upon them I express no concluded view. It is, however, not self evident to me that there was power of the kind which the judge exercised. Those are, however, matters which would fall for debate in the hearing of appeal SA87 of 1999. Presumably they would fall for debate if only because, as I would understand the notice of appeal, it may be taken as challenging the procedural fairness of the proceedings which led to the order for costs which was made. If that were so, it would not be to the point that the order for removal and confinement had been executed and nothing more remained to be done under it. The question of the lawfulness of that order would remain a live issue in the appeal. Again, however, it is as well that I emphasise that these are matters upon which full debate has not been heard and upon them I can, and do, express no concluded view.
Although the statement of questions in the applicant’s notice of motion may be thought to raise a large number of issues widely stated, three particular aspects of those questions warrant attention at this point. Some of the questions which the applicant contends arise in the proceedings pending in the Family Court focus upon the order for removal and detention to which I have referred. In the first instance, those are questions which require attention to the relevant statutory provisions. Most notably, they would require consideration of the relationship between section 35 of the Family Law Act on the one hand and, on the other, the provisions of section 112AP of that Act and Order 35 of the Rules.
The second aspect of the questions to which attention should be given at this point is those questions which relate to the validity of section 118 of the Family Law Act. That section provides, so far as presently relevant that:
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious ‑
…..
(c) if the Court considers appropriate, on the application of a party to the proceedings ‑ order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
Questions of the application of that provision may require attention to whether the court must first be satisfied that particular proceedings then before it are frivolous or vexatious before it may embark upon an exercise of the discretion conferred on it by section 118(1)(c) and, second, what is meant by the expression “of the kind or kinds specified in the order” at the end of that paragraph of the section. In particular, there may be thought to be a question whether an order which in terms forbids the bringing of any proceedings under the Act is an order of the kind contemplated by section 118(1)(c).
These, however, are issues which were dealt with by Justice Carter and considered on appeal by the Full Court of the Family Court of Australia. Neither before the trial judge nor in the Full Court was there raised, at least as far as I understand it, any question about the constitutional validity of section 118(1)(c). The constitutional question is raised for the first time, again as I would understand it, on the application for removal into this Court.
The third aspect of the questions to which I should refer at this stage is that they reflect the view which, rightly or wrongly, Mrs Bienstein has formed about how she has been, and will be, dealt with in any application which she, or, I would add, Tamara, makes to the Family Court. In the course of her submissions Mrs Bienstein made plain that she throws the weight of her application upon the desirability, she contends necessity, for this Court in the performance of its supervisory functions to ensure that she, and she would add, other litigants, have access to justice according to law in the Family Court.
It is neither necessary nor appropriate that I engage in the task of attempting to assess the validity of the complaints which Mrs Bienstein has. That would require a far greater and more extensive hearing than is appropriate to the disposition of the application now made.
It reveals, however, that her application is in part, perhaps large part, an application seeking to have this Court, first, act as would the Family Court at first instance but, second, to embark upon a general review of the way in which the Family Court has dealt with the several applications to which Mrs Bienstein or her daughter have been parties.
It may be readily accepted that this Court has, as one of its fundamental roles that, as final Court of Appeal for this country and in its original jurisdiction, particularly under section 75(v), of ensuring application of the rule of law, particularly in the judicial system of Australia. That is not to be done, however, as if the Court were a general judicial ombudsman. In particular, the powers under section 40(1) of the Judiciary Act are not to be exercised save for the evident purpose for which they are conferred of permitting removal into this Court of causes, or parts of causes, which raise constitutional issues ripe for decision.
Many of the questions which Mrs Bienstein says arise in these matters are questions connected with section 72 of the Constitution. Some, perhaps all, of the questions which she says are raised are questions which are not justiciable in this Court, being, as they are, questions concerned with grounds for removal of judges by the Governor‑General in Council on an address from both Houses of the Parliament in the same session.
It is necessary, therefore, to focus upon the first two of the matters to which I have referred, namely, those connected with the validity of section 118 of the Family Law Act and those arising out of the order for removal and confinement.
As to the former of those matters, it is enough if I say that I am not persuaded that there is at the moment pending in a federal court a cause involving in this respect the interpretation of the Constitution. The issues about the section 118 order have been heard and determined. They were heard and determined without reference to constitutional considerations. There is, in my opinion, now no live cause raising the constitutional issue.
As for the matters arising from the order for removal and confinement, it is important to notice that they are matters which are raised in the appeal now pending in the Family Court and that that appeal presently stands fixed for hearing on Tuesday next, 5 December. Ordinarily that would be reason enough to decline to make the order for removal. Mrs Bienstein says, however, that she cannot appear on the hearing of that appeal, for to do so would put her health at risk. She says that she cannot attend the hearing of that appeal because she has had no assurance satisfactory to her that there would not be further, as she would see it, unjust detention of her.
The absence of the assurance which Mrs Bienstein seeks is not, and must not be taken as, reason enough to conclude that there is a real or lively threat of the conduct which Mrs Bienstein says she fears. That being so, Mrs Bienstein should not reasonably take the absence of the assurance she has sought as some veiled threat. It is not.
She has in the Full Court of the Family Court process by which she seeks to challenge what has happened. It is better that that hearing go forward rather than that the matter be removed into this Court. Not least is that so where, as I have said, consideration of the issues must begin from questions of statutory construction rather than questions of constitutional validity.
In these circumstances, I am not persuaded that it is appropriate to make orders removing either of the causes, or any part of them, into this Court. The application is dismissed.
Adjourn the Court.
AT 12.25 PM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Abuse of Process
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Costs
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Injunction
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Res Judicata
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Stay of Proceedings
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