CAH v PMK & Anor

[2004] HCATrans 507

[2004] HCATrans 507

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S590 of 2003

B e t w e e n -

CAH

Applicant

and

PMK

First Respondent

PAUL GALLAGHER (CHILD REPRESENTATIVE)

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 2.39 PM

Copyright in the High Court of Australia

CAH appeared in person.

MR P.J BASTON:   I appear for the first respondent.  (instructed by Lehns Solicitors)

HAYNE J:   Yes, I have a certificate from the Deputy Registrar that she has been informed by the solicitor for the second respondent, Mr Gallagher, child representative, that the second respondent will submit to any order of the Court, save as to costs.  Yes, Mr H.

CAH:   Your Honours, just a bit of background to the case.  The mother has previously tailored evidence to suit her purposes in various courts, particularly when it comes to me.  This has happened in the Local, District and Family Courts, and mostly has gone unanswered in the Family Court, as have the mother’s breaches of court procedures.  The mother has also failed to attend all offers of mediation since 2001, making our case ‑ ‑ ‑

HAYNE J:   Mr H, this seems to be departing from the purpose of this hearing, which is to identify, amongst other things, whether there is an arguable case of error in the decision in the court below.  Perhaps if you would come to that, please.

CAH:   In regards to our children, in our case, the status quo should have prevailed.  The Family Court’s reason for their decision is unacceptable.  The reason that the Family Court made their decision based on personality traits is plainly wrong.  At no stage prior to separation did the mother or anyone else say to me that when our children are out of nappies and reach school age that I would no longer be required.  The psychologist’s evidence judged on is not relevant in our case for a number of reasons, including the fact that his evidence to form the judgment is contrary to the mother’s own evidence.

Mr Andreasen, the psychologist, reported that I had my personality traits that were judged on by the Family Court all of my life.  The mother married me for my own individual personality traits.  The mother had our children a few years after she read the reports from Mr Andreasen.  The mother wanted me to raise our children at home while she pursued her career.  The mother’s current new direction is inconsistent to the children’s needs, and I say that an error has been made by the Family Court in altering our family’s pattern of life.  I refer to page 43 of the supplementary application book, to Mr Andreasen’s final report, where he confusingly contradicts his previous reports with his final conclusion of me, which cannot be dismissed by any court, and it says:

After consideration of the results of Jill Farrelly’s assessment I was less inclined to see this man as having any psychiatric diagnosis at all, even of delusional thinking -

Because of the doubts about Mr Andreasen’s outdated report, that was not written in relation to the children at all.  His Honour Justice Bell has erred because he did not adequately further explore the appropriate report of Dr Hayes and Lorri Craig.  The above was established in the case law of T & S, which has been supplied, which describes personality traits, which the children were exposed to, and were vastly more pronounced than mine, but regardless of that were judged to appeal to have residence granted.

The above was also established in the case law of L & T, which has been provided, where even though the appellant’s personality traits were again more pronounced than mine, and also distorted information was given by the appellant, and also the fact that the appellant went on a relentless campaign of vilifying the respondent, the appellant’s appeal was upheld because the second psychologist’s evidence was avoided at the hearing.

This is similar to my case, where the up‑to‑date and more appropriate evidence of Dr Hayes was not fully taken into consideration.  It implies at paragraph 47 that although the precise error of principle cannot be identified, the judge has reached a conclusion that is plainly wrong, and in our case, this is so.

Other than those previous important points, I wish to stress the following points.  At paragraph 63, on page 93 and 94 of the supplementary application book, it is admitted by the Full Court of the Family Court that the psychological reports were not directed at those proceedings, and it appears that they contain some contradictions.  However, the Full Court of the Family Court indirectly, and incorrectly, relied on grounds to this answer by adopting the mother’s barrister’s submission.

Regardless of the cross‑examination evidence, the trial judge should have read all of these reports and noted the contradictions at the time and then judged with the more appropriate, relevant, and up‑to‑date, specialist psychiatric report, specifically written for the Family Court in regards to these previous psychological reports containing my personality traits, which were specifically written in relation to me raising children.

This report was written by Dr Ian Hayes, who took into account those previous psychologist reports, including Mr Andreasen’s, and this is recorded on page 1 of his report on page 44 of the supplementary application book, and then Dr Hayes concluded on page 47 of the supplementary application book, obviously after taking into consideration the residence issue and my personality traits:

there is nothing in his history or in my assessment that would suggest that he is currently unable to adequately care for his children.

In relation to paragraph 64 on page 94 of the supplementary application book, I say that the Family Court has made an error.  Dr Ian Hayes is more qualified than Mr Andreasen, and specifically reported to the Family Court, as I said, with the up‑to‑date details in relation to my child raising, and this should have been the report that his Honour Justice Bell and the Full Family Court should have used for their judgments.  Although his Honour Justice Bell and the Full Family Court could have come to their conclusions for their judgments as they have done so, or for any decision for that matter, I say that they have erred and have come to the wrong conclusion to form their judgments.

In the case law of House v The King, it says:

It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his . . . It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

In our case, the status quo should have prevailed -

Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts -

and, in our case, this is exactly what has happened.

The judge has looked at reports from a psychologist whom I had only seen twice, but had not seen for about 10 years, and this was only in relation to a car accident, and not in any way related to children.  There was and is no just cause to take residence of our children away from me, and the status quo should have prevailed.

Many people have supplied evidence and affidavits supporting me to the courts in relation of how good my parenting is as a record of the Family Court mainly, and in the supplementary application book, including my mother, father, sister, uncle, neighbours, friends, the mother’s friends and witnesses, the mother’s witnesses, as well as the mother’s own evidence.  For example, her very first affidavit in support of her interim residency application sworn on 26/5/2000 stated words to the effect that “Craig is a good father, and would never do anything to hurt the children”.  Sorry, I quoted that, it is words similar to that effect.  I cannot find the exact words.

I refer to the Director-General, Department of Families & RSP, which is in the case law at paragraph 50.  It says:

his Honour’s discretion miscarried because he did not balance “the nature and severity of the risk identified” 

In our case, the nature and the severity of the risk is not identified, and the status quo should have prevailed.  I believe her Honour Justice O’Reilly when she said in the Family Court in February this year at our property hearing that “I can see that there is nothing psychologically wrong with you, Mr H”.

Please make no mistake.  I am here for the residence of our children.  In regards to the property case, this is mainly about the contentious issue of the values and the timing of the division of assets for settlement purposes.  The Family Court has not properly taken into account the assets at the time of separation and the use of those assets since that time, regardless of agreements, particularly in relation to the early disposal of some assets that have not been kept in perspective or a proportionate value to the balance of assets upon settlement.

HAYNE J:   Now, the order of the Full Court, which you seek to challenge, was an order so far as the property issues were concerned, for retrial, was it not?

CAH:   Yes, your Honour.

HAYNE J:   What has happened with that retrial?

CAH:   At the moment there is a retrial, I believe, for property and children, which I have to reinstate within, I think, the next two or three weeks.  I have concentrated my time on today. 

HAYNE J:   And if that happens, that is, if the retrial goes ahead, are all the property issues open for debate again?

CAH:   I believe that they most likely would be.  The reason why I am here today ‑ ‑ ‑

HAYNE J:   And are the questions of the residence of the children, questions about residence up for reconsideration again?

CAH:   I have applied for them.  I do not know if the court are dealing with them, your Honour.

HAYNE J:   Yes.

CAH:   It is the reason why I am here today, to try and, if I just continue, I will probably get to that point.  I believe that the property issue is an issue of national importance, and if there is no suitable law currently available to apply the orders that I seek, then I request the High Court of Australia to make a new law starting with this case today so as assets cannot be continually dwindled away year after year by the parties and solicitors.  This is so the parties and their children have the opportunity to get on with their lives, as should be intended by the courts.  I refer to the case law of Fowler v Zoka, and all the property authorities supplied.

His Honour Justice Bell’s decision would have been adopted if he included 7 Rous Road and 151 Ballina Street, at values reflecting similar dates to 55 Burns Point Ferry Road and 54 Hindmarsh Street, regardless of when they were sold by the parties.  I refer to page 273 of the application book for that, for the values.

My contributions have not been fully realised in court judgments.  The value of my three premarital properties has not been realised, and clearly not enough weight has been given by the courts as to how my management of the equity and the capital gain has been applied for our family’s benefit during the course of our marriage.

The 151 Ballina Street property was only sold by the mother’s insistence and in order to finalise property proceedings in 2001.  The 7 Rous Road property, however, the Family Court has only taken into consideration its previous 2001 value as well, which I gave to the mother for a dollar whilst continuously and numerously giving current values to the homes that I have retained, maintained and upkept for the benefit of our children.

I realise our case is difficult for the courts, and also that our children’s upbringing and lifestyle has been affected because of legal costs in order to obtain the justice that I seek.  The assets should have remained as divided in 2001 when the mother had about 66 per cent of the marital assets at that time, even though I had residence of the children at that time.  I believe the task of including the assets of the parties and trying to keep them in perspective by valuing them at different periods of time would be very difficult, as well as leaving assets out, because they were sold at different stages and, therefore, dramatically changing the outcomes of orders with each new hearing, subsequently causing increased feuding amongst the parties and legal practitioners and adding more legal costs, ultimately affecting our children.

In 2001, I was advised that this would not happen, and that the “judge would keep all of the assets in perspective”.  That is the only reason, the only reason that I agreed to divide our assets in 2001, or else I would definitely not have divided the assets in 2001.  The Family Court still has not fully realised my homemaker contributions.  With respect of contributions, I rely on the case law of Kirby v Kirby.

The mother’s hearsay evidence that the mother’s income was $35,000 per year on an average of 10 years was accepted by the family court, and inappropriately was judged as so, despite my previous and numerous requests, and a notice to produce, which was not complied with by the mother, or addressed by the Family Court for her to show tax records from 1990 to date, plus share transactions, which are easily obtainable from the Australian Taxation Office.  Our incomes were not equivalent at all.  This is a clear error of judgment.  I refer to Turnbull v McGregor as well, for property.

Our simple divorce case has been exploited, I believe, by solicitors, using our children as pawns and stripping our assets, with both of us losing legal costs, worth approximately $400,000 to date, plus two houses and land on the top of that, valued at around $500,000 to $600,000 today, and have continually and unnecessarily driven us to despair, trying to sort our problem out.

In conclusion, if my orders that I seek are adopted, and our children will benefit with my continued security, as always, I say that the Family Court did not apply the top 10 current case laws, or the appropriate case laws properly in respect of our residence and property orders.  In regards to 3.3 and 3.11 on page 8 and 11 of the supplementary application book, I request that the High Court of Australia dismiss all Family Court residence property and cost orders against me, in order so that the status quo should be prevailed, and that I can continue to raise our children, as was initially intended, and in our children’s best interests.  If the orders that I seek are unsuccessful, then I seek a discharge or a variation of the orders.  I refer to the case law of T & S for that.

Finally, that is why, in the best interests of our children, the status quo should prevail, and as my first choice, I seek option 3.6 of the

children’s orders that I seek on page 9 of the supplementary application book, with an addition to (ix), with preference, in the children’s best interests, that the children go to the father at noon each Tuesday, and return to the mother each Sunday, or following any nippers’ junior lifesaving event, and option 3.10 of the property orders that I seek on page 9 and 10 of the supplementary application book.  This is so, as our children can obtain a more suitable and positive future, with the benefit of my input and encouragement that they have always had.

That (ix) addition I mentioned is solely so that our children have the benefit of going to their sport each week, and not every second week.  The mother did tell or implied to his Honour Justice Bell that she would continue to take them to nippers.  That was on the stand in February 2003, and to date the mother has not taken to nippers at all, and I just want to bring up my kids properly, your Honour.  Thank you.

HAYNE J:   Yes, thank you.  We need not hear you, Mr Baston.

Many, perhaps all, of the issues the applicant would wish to canvas in this Court will be open for argument and consideration at a further trial in the Family Court, which is to be heard soon.  That may be reason enough to refuse the special leave the applicant now seeks, but in any event, an appeal against the actual orders made by the Full Court of the Family Court would enjoy insufficient prospects to warrant a grant of leave.  It follows that special leave to appeal is refused with costs.

AT 3.01 PM THE MATTER WAS CONCLUDED