Curtis v Jorgensen

[2001] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B81 of 2000

B e t w e e n -

ANTHONY NOEL CURTIS

Applicant

and

LISA MAREE JORGENSEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 2.55 PM

Copyright in the High Court of Australia

MR A.N. CURTIS appeared in person.

GUMMOW J:   I see that in the Family Court the names of the parties were used.  Is there any reason why that should not be so here?

MR CURTIS:   I suppose I was under the impression that no names were to be called.

GUMMOW J:   Why not?  What reason would you give for a different course to that adopted in the Full Court of the Family Court?

MR CURTIS:   I just thought that they were not allowed, basically, your Honour.

GUMMOW J:   The ordinary rule is they are allowed unless there is some special circumstance that they should not be.

MR CURTIS:   My apology, then.  There is no real reason.

GUMMOW J:   There is no need for an apology, but we just need to know.  You will appreciate the transcript of what transpires today goes on the Internet, for example.

MR CURTIS:   Yes.  It is something I must have read through the procedure manual.

GUMMOW J:   All right.  Call the matter outside the Court, Officer.  There seems to be no appearance for the respondent.

MR G.J. REBETZKE:   Your Honour, if I could indicate, I am a solicitor from Roberts & Kane, the town agents for the solicitors on the record for the respondent in this matter.  (instructed by Roberts & Kane)

GUMMOW J:   Yes.

MR REBETZKE:   I am instructed to attend as a courtesy to the Court today, however, I do not propose to seek leave to appear and the solicitors have previously indicated that this respondent will submit to any order of the Court, save as to costs.  Unless I can be of any assistance to the Court.

GUMMOW J:   Yes, thank you.

MR REBETZKE:   Thank you.

GUMMOW J:   We direct that the Court record be revised to identify the applicant as Anthony Noel Curtis and the respondent as Lisa Maree Jorgensen.  We note that as a matter of courtesy to the Court there has been a limited appearance today by a solicitor as town agent for the solicitors for the respondent and we will now hear your oral submissions, if you would like to develop them, Mr Curtis.

MR CURTIS:   Yes, your Honour.  This appeal is on grounds of a discretionary judgment of the trial judge and of a Full Court appeal.  The Full Court appeal was on a ‑ ‑ ‑

GUMMOW J:   Would it be more convenient for you if you came to the middle?  I think it might be, otherwise you are on one side of the room and we are on the other.  Yes.  Now, start again, if you wish.

MR CURTIS:   The appeal is basically on a discretionary basis and also on errors of admissible evidence sustainable by a report conducted by the – the conduct of a court counsellor which was the witness of the court.  That evidence was not wholly supported or viewed by the Full Court, through my submissions.

GUMMOW J:   They gave a very detailed judgment.

MR CURTIS:   They were on the view that the discretionary ‑ ‑ ‑

GUMMOW J:   There is 50 pages.

MR CURTIS:   That may be the case but they did not take in the whole of the account of the trial judge and my submissions and on the view of that they did not take in consideration of the report, which is basically my evidence that the trial judge was influenced solely by that report and that report was contemptuous and there is evidence to show that it was more than just the basic of appropriate – it was quite to the issue that that report conducted, considering the orders of the interim hearing, that a psychiatric report of the mother was entitled to the father.

There was also orders granted at the interim hearing and that was not allowable by the father and his solicitors to obtain that psychiatric report before the trial hearing.  The family report that was conducted by the witness of the court solely gave full evidence against the father which I ‑ ‑ ‑

GUMMOW J:   That is against you.

MR CURTIS:   Against me, and it was basically an issue that was quite discriminative and biased without any evidence that was supported by the father by affidavits and issued to the court – to that report writer.  There is no allowances were given to the father to have other people brought to the – to that report and yet the mother was allowed witnesses by hearsay and verbal and those witnesses were hostile witnesses.  That was conducted through that report and my argument is, with the evidence that I could show you with the transcript during the trial hearing, which I would say the Full Court did not consider because they had the view that they would not overturn a trial judge’s decision as they were not privy to all the information and were not conducting that trial hearing and ‑ ‑ ‑

GUMMOW J:   Now, what do you say, Mr Curtis, as to paragraph 120 of the Full Court judgment?  It is on page 81 of the record in this Court.  It seems from that that the circumstances have changed.

MR CURTIS:   Excuse me, your Honour?

GUMMOW J:   Paragraph 120 on page 81.

MR CURTIS:   Of the Full Court or of the trial?

GUMMOW J:   The Full Court.

MR CURTIS:   The Full Court.

GUMMOW J:   That is what we are primarily interested in.

MR CURTIS:   Yes, bear with me, 120?

GUMMOW J:   Paragraph 120, yes.  It is towards the end of the judgment.

MR CURTIS:   “As to the steps which the father has taken”?

GUMMOW J:   Yes.

MR CURTIS:   Yes.

GUMMOW J:   Now, in the light of that, are you taking any further steps to bring a fresh application, at first instance, in the Federal Court?

MR CURTIS:   A bit more time, your Honour.  I will take this in.

GUMMOW J:   Take your time.

MR CURTIS:   Yes, your Honour, those steps were taken.  It took three months and they were cemented on 2 September.

GUMMOW J:   Last year?

MR CURTIS:   Of 1999, and psychiatric assessments, parenting courses were provided in that affidavit filed on 28 September.  Individual contact facilities had been provided as well and on numerous occasions – I think we have been to court 10 times since then and they have all been adjourned.

GUMMOW J:   Now, the Full Court is speaking its judgment on 2 November last year, 2000.

MR CURTIS:   Yes, and that took 12 months from the date of reservation of their judgment, from the date of it being heard ‑ ‑ ‑

GUMMOW J:   That may be so, but what I am trying to find out is, have you taken further steps as they were saying were open to you in paragraph 120?

MR CURTIS:   Yes, your Honour.  All of those steps have been taken forward.

GUMMOW J:   And they are still pending, are they?

MR CURTIS:   Your Honour, it went to trial last month before Justice May and it was part heard.

GUMMOW J:   I see.

MR CURTIS:   My suspicions are that they were waiting for this appeal, too.

GUMMOW J:   That could be so.

MR CURTIS:   And on those conditions that contact was to occur and it has not occurred and I have had quite a difficult time with the Legal Aid situation.  I have a letter here from Legal Aid.  It goes back – and it states right up to now, I have contested Legal Aid and they consider that I have no merit of success and their issue was that before the trial judge had stated that ground the – a letter here, which would probably make it more clearer than what I would express it ‑ ‑ ‑

GUMMOW J:   Do you wish to hand it up?

MR CURTIS:   Yes, your Honour.  I have copies.  There has been an awful lot of influence by Legal Aid and other bodies and my – at the trial before Justice May recently it had been shown that certain lawyers were not – were quite prejudiced and the fact that they were in contempt of court.  The point is, those applications are still pending because that was part heard and they have not been dealt with, but those solicitors have declined to attend the courts and submitted on grounds that they do not intend to take compensation.  But, there was ample evidence put before Justice May for that and my grounds are it is still quite a horrendous situation where the cases seems to get more complicated and in two years I have had no contact with the child since Justice Warnick made his decision.  I have made ‑ ‑ ‑

GUMMOW J:   Do you wish to hand up that ‑ ‑ ‑

MR CURTIS:   Yes, I have a few letters here that ‑ ‑ ‑

GUMMOW J:   Well, just take one at a time.

MR CURTIS:   Yes, okay.

CALLINAN J:   Mr Curtis, could I just ask you so I understand it properly, there are pending proceedings before her Honour Justice May; is that right?

MR CURTIS:   Yes.

CALLINAN J:   And they are proceedings in which you seek, what, different contact orders with respect to the child; is that right?

MR CURTIS:   Yes, your Honour.  Your Honour, in – Justice Warnick’s orders were that within 14 days either party bring the – to review the contact issues and that he would take it as a – by urgent proceedings or whatever – and it went on and on.  He was reluctant to stop contact but because of the medical evidence ‑ ‑ ‑

CALLINAN J:   I understand that.  I just really want to know what the status of the proceedings before her Honour Justice May is.

MR CURTIS:   Well, in that situation Justice May’s judgment had expressed that the father had put application upon application and it has eventually come to the issue of residency.

GUMMOW J:   They are part heard, are they?

MR CURTIS:   And it is part heard and it is not to be heard until Christmas again.

GUMMOW J:   Until?

MR CURTIS:   Christmas, six months.

GUMMOW J:   I see.

MR CURTIS:   And contact has been – has not occurred.  I am having a quite difficult time with Legal Aid, again, because ‑ ‑ ‑

CALLINAN J:   But has her Honour made any order for contact?

MR CURTIS:   Yes, your Honour.

CALLINAN J:   What, in your favour?  She has given you some contact?

MR CURTIS:   Yes.  There are issues where that the mother has to see a psychiatrist on a regular basis, medication ‑ ‑ ‑

CALLINAN J:   I am not really concerned about the detail of it.  I just want to know what the current situation is.  It seems to me, and you correct me if I am wrong, Justice May has already made some orders in your favour which give you some contact which you did not have with the child before; is that right?

MR CURTIS:   Since Justice Warnick’s decision I have had no contact, other than telephone.  That was stopped by Justice Jordan because of the mother’s allegations and nothing has been contested to those issues.  It is part heard to the fact where the mother is still on the stand and emotionally unable to continue on.

CALLINAN J:   Her Honour Justice May has not made any different orders yet?

MR CURTIS:   She has made orders that contact to occur once a month, four hours Saturday, four hours Sunday ‑ ‑ ‑

CALLINAN J:   She has made some orders in your favour then?

MR CURTIS:   Yes, and ‑ ‑ ‑

CALLINAN J:   You are seeing the child now?

MR CURTIS:    ‑ ‑ ‑that the father pay all expenses to fly ‑ ‑ ‑

CALLINAN J:   All right, well ‑ ‑ ‑

MR CURTIS:   ‑ ‑ ‑ both parties – it is $2,000 a month just for that contact, which is quite inconsiderable to the issue that I should have to ‑ ‑ ‑

CALLINAN J:   All right, but orders have been made now for contact and there is now an argument before her Honour which has not yet been resolved about the residence of the child; is that so?

MR CURTIS:   Yes.

CALLINAN J:   And that has been adjourned; is that correct?

MR CURTIS:   It has been adjourned, part heard, until the first week of December.

CALLINAN J:   Yes.

MR CURTIS:   The issue of unsupervised contact before that judgment – that trial to be heard for the purpose of a – it was shown that her Honour decided – was well concerned that the father should have residency of the child but concerning the mother’s ill health that the benefit be taken that to safeguard the mother’s health that the father have supervised contact and then unsupervised contact, progressively and that in November come back to be heard again.

But, your Honour. we have had four days of the trial just last month and we go for another four days again in December.  That is eight days.  The point is, the applications have been adjourned four times and this application was put before the court two years ago and it has come to a situation where the psychiatrists have made the issue that, yes, there is no doubt that there is a problem here that the court has overlooked and maybe I have persevered with the court to a point where it has not been good for the child and that is my greatest concern.

GUMMOW J:   The child is now, what, four or five years old?

MR CURTIS:   Yes, your Honour.  I have lost half her life, so far, to the point where I have tried to show the court that there is more of a greater concern than a domestic issue here.  The issue that the court was concerned with was a political issue of a domestic assault, but on those grounds the court has never concerned – as Miss Davies was cross‑examined, and the view was that if the father did not appeal that assault that she would reconsider her report and that the father would have a more greater understanding of what emotional problems he may have caused, but my view has always stood, even in – it is not for the – my view is that the child was at risk at that stage and I have stated that all the way through and in a local court I was convicted of assaulting the mother but I had no grounds for self‑defence or protecting the child and the courts have never been given the evidence of the fact that the mother was not well.  It was found that she was drunk.

Those issues were never taken into consideration.  We are isolated to an area where the nearest town is over an hour and a half – it was 2 o’clock in the morning and she wanted to take the child when she arrived home from wherever she was.  Now, all these issues that the father has the responsibility – he was caring for the child.  She only had just got out of hospital a month before and those issues have not been tendered to the court and as Justice Warwick had not considered the issues that the mother was not well, even six months before that, and those – there where she had, unknown to the father, that she had discharged herself from a psychiatric hospital on visiting her parents at Christmas time.

A lot of these issues is where my argument stands.  The basis of the assault – I have had to deal with that through the State prosecution and, okay, that was an issue dealt with.  The mother has accepted that, but the point is, her mental state was not well and had not been well for 10 years and these issues, I believe the court is overriding and I think there are a great deal of political influences here, that the child is now in a situation that the psychiatrist – the mother has never been psychiatrically assessed until three months ago and it has taken that long for the court to make that issue.

GUMMOW J:   But it has now happened, has it?

MR CURTIS:   It has now happened and the psychiatrists have expressed, yes, the child is being manipulated by the mother and has psychiatrically been affected and will be in the future.  The problem is that this child, in the reports – my greatest concern is that a court witness – and I will express this quite clearly and I think the report states for itself – it is quite contemptuous against the father and reading through it and through the transcript of the oral evidence of that court counsellor and it does show that she had no real facts and evidence to support her conduct in her report.

That, recently before Justice May last month where Justice May had stopped cross‑examination of that court counsellor’s witness because it was incurring too much evidence against the court.  I felt that I was discriminated there because I was not allowed to bring the evidence forward of bias towards the court and in that case the court had accepted the report solely and throughout Justice Warnick’s evidence I believe he is influenced because he has a view that domestic violence should not be an issue and he is a member of the committee of the Queensland domestic violence – he is a judiciary member and, the fact is, I can understand fully his view.

I would condone it myself but the point is, it was self‑defence and protection of that child.  There is no issue of a shotgun and there is no evidence that they ever wanted to know about what the mother was capable of doing.  The evidence that was put forward by the mother’s lawyers was enlightened and enhanced to a point where it was obscured, to where the point was – from black – from a criminal – from a local court they produced evidence and photographs of the mother and they enlightened it in colour to enhance it to a point where it was over-enhanced, to a point where it could not be accepted as evidence, but yet the court continued on without considering that that issue had been dealt by a State Government and prosecuted and it is not for the court, and the Family Court, to deal with that again.

The issue was the child and the best interests of the child, and throughout the orders of Justice May it is quite open that those orders had been breached again.  I would like to hand this letter from the Legal Aid, which I have had quite a difficult time with them, and it basically represents an issue that I will – there are two letters here.  This goes back before the trial hearing and this is an issue where a child representative was appointed at the time of the interim hearing by Justice Maxwell.  The evidence was not carried through.  That Legal Aid child representative was appointed by Justice Maxwell and had that not been continued through, no doubt contact would have been much more appropriate because the solicitor there representing the child was well aware of the issues that Justice Maxwell had issued.

Contact did not – was troublesome because the mother was in hospital for over three months and in that time in a psychiatric hospital.  That was not really issued in the court before Justice Warnick and an overriding situation, I believe that he did not consider those issues to be of importance but only to blame the father.  The father had to travel over 1,000 kilometres each month one way, 2,000 return, pay all the costs as well, accommodation through holiday seasons, only to have contact with his child.  He had to pick that child up eight times, 16 times for that month for four days, pick up, drop off each day, and that was from another hostile member of the family and that was the issue of why supervised contact was issued by Justice Maxwell.  All these issues were not ‑ ‑ ‑

GUMMOW J:   You can see the time limit.

MR CURTIS:   Okay.  I would like to give you another from the Legal Aid, which is a great – it does imply to the issues that ‑ ‑ ‑

GUMMOW J:   If you have got any more letters you should hand them up altogether now, please.

MR CURTIS:   Okay.  There is four – there is a few there.  That gives you an idea of the issue where Legal Aid have as an instrument in this proceedings before Justice Warnick – I had instrumented – I was brought into this from a local court and then brought to a Family Court before Justice Maxwell and then after that I was – during that I was on legal aid.  Reminding you I am – I was living in an isolated farming environment, I had a very good business that was just coming out of drought and there was prospects for ‑ ‑ ‑

GUMMOW J:   Now, we are getting a bit remote from the actual matters we have to deal with, Mr Curtis.  Is there anything more you want to add?

MR CURTIS:   Yes.  I had actually put before the Court a supplementary of argument, as well.

GUMMOW J:   Yes.

MR CURTIS:   I hope that you have received that.

GUMMOW J:   Yes.

MR CURTIS:   That explains my – well, it gives you an idea of basically what I have contended with and I do not think that the Full Court had ever dealt with it.  Their view was that on a discretionary view that they were not prepared to override a trial judge’s decision, but the point is they did not deal with it as a whole.  They did not deal with the counsellor’s report, only that they had suggested these things do occur and they were aware of it, but the point is, Justice May recently had shown, yes, that there was an issue of bias to you and that was not contested too much further.

My other greatest argument, I would say that I had a – the family was quite happy there at the farm.  We have a very comfortable three‑bedroom home.  It has got – well, it does not have the shops around the corner but the point is we have very good neighbours and they visit once in a while.  It was not a place that we were going to consider for the future but it was a business and it was quite suitable for the mother although the mother, to my view, was suffering a lot more than what I realised and I do not think I should be totally for the blame of that.

My issue here is that that child did dearly love the father and had a great bondage with that father – that is myself – and that bondage was taken away by the court on the assumptions that the – of the allegations of the mother.  The mother, since, has made other allegations that the court now has to consider whether they are going to accept – whether they are going to deal with the issue and the point is it goes on and on.  The mother cannot be accepted by her truth.  She ‑ ‑ ‑

GUMMOW J:   Yes, well, I think you have made that point to us, Mr Curtis.

MR CURTIS:   Well, your Honour, I will just ‑ ‑ ‑

GUMMOW J:   You only get 20 minutes ‑ ‑ ‑

MR CURTIS:   Okay.

GUMMOW J:   ‑ ‑ ‑ and the red light is on and it means what it says.

MR CURTIS:   Thank you.  I would just like to – I have not given you any cases versus cases or anything, mainly because ‑ ‑ ‑

GUMMOW J:   We have looked at those in the submissions.

MR CURTIS:   Okay.  I was given a case that the Full Court had handed down.  I think it was Festa v The Queen.  I do not think that really stipulates this issue because it is quite obvious the evidence through the trial hearing that the mother’s witnesses and the family report were quite hostile and the evidence does show that they were lying, but that is where I am saying the trial judge was influenced by not taking an independent – he was biased and he did not consider the fair playing field, he only considered the fact that the father had emotionally abused the child by the prospects of the family report and I did denounce that for the fact that I have never considered that that was even an issue and fabricated evidence by a ‑ ‑ ‑

GUMMOW J:   Well, we have heard that, too.

MR CURTIS:   Okay.  I was reading Ex parte Maclean ‑ ‑ ‑

GUMMOW J:   Now, you really must finish, Mr Curtis.

MR CURTIS:   Okay.  I suppose that is about the best I can do.  There was the issue that there were contact facilities available on the Central Coast two years ago and Legal Aid had actually given the court just recently before Justice May that – and here is a document that ‑ ‑ ‑

GUMMOW J:   No, no more documents, Mr Curtis.

MR CURTIS:   Okay.  And that document actually expresses that – that that there were – also confirmed there were also contact centres at Wyong, Hornsby, Gosford in the area of New South Wales for contact facilities.  Now, they were disputed in oral evidence by the report writer which confirmed the issue that no contact could occur.  Now, I have had to fight along the issues that – there are contact facilities available and the court is well aware of it but ‑ ‑ ‑

GUMMOW J:   Yes, very well.

MR CURTIS:   ‑ ‑ ‑ if the father cannot have any – if the father cannot take his responsibilities, let alone have the opportunity to have any upbringing of their own children, well, I would consider that the family rights – there is a lot to be desired.

GUMMOW J:   Yes, thank you, Mr Curtis.

MR CURTIS:   Thank you.

GUMMOW J:   The applicant seeks special leave to appeal against orders made by the Family Court and affirmed by the Full Court of the Family Court with respect to the residence of a child and the contact with the child by the applicant, who is the child’s father.  In the proceedings in those courts it was necessary for findings of fact on a number of disputed matters to be made.  Detailed reasons for the findings that were made were given by both courts.

The applicant is unable to demonstrate, to the degree required here, any errors in those findings which would invite the intervention of this Court.  Nor is the applicant able to point to any errors of law on the part of the Full Court of the Family Court to justify a grant of special leave.  For these reasons, and the further reason that there are further pending proceedings now before the Family Court in which the applicant may be able to point to change supervening circumstances as a basis for seeking different orders from the Family Court, the application must be refused.

AT 3.29 PM THE MATTER WAS CONCLUDED