DEPARTMENT OF COMMUNITY SERVICES & MOREVIC

[2011] FamCA 109

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & MOREVIC [2011] FamCA 109

FAMILY LAW – Application to set aside orders – allegation of fraudulent orders.

APPLICANT: Director-General,
Department of Community Services

FIRST RESPONDENT: Mr D Morevic

SECOND RESPONDENT: Mr O Morevic

FILE NUMBER: SYC 1502 of 2008

DATE DELIVERED: 1 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 17 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ward

SOLICITOR FOR THE APPLICANT: NSW Crown Solicitor’s Office

RESPONDENTS: in person

Orders

1. The Application herein of Mr D Morevic and Mr O Morevic filed on

   
   

   25 August 2008 is hereby summarily dismissed pursuant to s. 118 of the Family Law Act and rule 10.12 of the Family Law Rules.

2. The unsigned Amended Initiating Application herein of Mr D Morevic and Mr O Morevic filed on 14 March 2008 and bearing struck out filing stamp dated 23 April 2008 being the principal application in the proceedings is hereby summarily dismissed pursuant to s. 118 of the Family Law Act and rule 10.12 of the Family Law Rules.

IT IS NOTED that publication of this judgment under the pseudonym DGDCS & Morevic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1502 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

Mr D Morevic

First Respondent

And

Mr O Morevic

Second Respondent

REASONS FOR JUDGMENT

1. Before February 2008 Mr D Morevic who I shall call the first respondent, commenced proceedings in the Supreme Court of New South Wales. Mr O Morevic, his brother, who I shall refer to as the second respondent, commenced similar proceedings in that court. On 27 February 2008, Price J. of the Supreme Court made an order requiring the first respondent to file a proposed application in the Family Court of Australia to set aside the orders of the Family Court in File No. SY 6727 of 1998 made in 9 September 1998 and the orders of the Full Court of the Family Court in File No. SY 6727 of 1998 and Appeal No. EA76 of 1998 made on 29 September 1998 on or before 19 March 2008.

2. Essentially, in the Supreme Court, the first respondent’s cause of action was for nervous shock allegedly caused by the wrongful acts of the State of New South Wales and of the Commonwealth of Australia committed by their public officers. The facts upon which the first respondent bases this claim are best extracted from his affidavit filed on 14 March 2008 in the Family Court of Australia and sworn on 13 March:

   7. In the above Supreme Court proceedings I alleged that certain servants and agents of the Defendants with an intention to abduct or to assist in the abduction of my daughter from me unlawfully interfered with me and my daughter involved themselves in unlawful acts and committed various torts against me and in particular:

   a)   the public officers commenced and conducted the proceedings in the Family Court in fraud in circumstances without involvement of the NSW Central Authority

   b)     the persons who took my child did that by fraud and in particular:

   i)entered my home without warning and trespassed my home

   ii)falsely represented themselves as the police

   iii)presented as a warrant fabricated document

   iv)wrongfully arrested and imprisoned and then assaulted and battered my mother and my daughter

   v)took my child by force and then delivered my child to a secret place where she was wrongfully imprisoned

   c)     my child was wrongfully imprisoned about 10 days at some secret place while we were deceived by the public officers that she is under care and control of the Director-General of the DOCS of NSW

   d)     my child was physically, mentally and sexually abused and neglected in the detention

   e)     my child was smuggled and unlawfully deported from Australia

   f)   my child was taken out of Australia in fraud

   g)     the taking of my child out of Australia was unlawful act without involvement of the NSW Central Authority and without proper court orders etc.

3. On the second day of hearing before me, the first respondent and his brother who by then had become the second respondent, alleged the forgery, fraud, abuse of process and other offences had been committed as part of a conspiracy to take B so she could be sexually abused by paedophiles. This allegation was withdrawn when I required the respondents to nominate, so far as they could, the people involved in the conspiracy and provide particulars of it.

4. Price J’s reason for making the order referred to was that the first respondent had applied for a declaration in the Supreme Court that documents purporting to be orders of the Family Court, including the Full Court, were void or invalid and to set aside those apparent orders. His Honour decided that he did not have jurisdiction to make any such declarations, or to set any such apparent order aside, so required the first respondent to commence proceedings to that effect in the Family Court of Australia. Without such orders or declarations the first respondent’s ability to prove that the defendants in the Supreme Court proceedings had acted wrongfully would be compromised, to say the least.

5. I decided, as a preliminary point, to hear the parties on whether or not the proceedings for final orders in the Family Court brought by the first respondent should be dismissed pursuant to s. 118 of the Act on the ground that they are frivolous and vexatious. The original respondent to the Family Law proceedings, the Director-General of the Department of Community Services, who I shall refer to as the Director-General, on 17 February 2009, filed an Application in a Case for summary dismissal of the first respondent’s application pursuant to Part 10.3 rule 10.12 of the Family Law Rules, 2004. The application to which the Director-General’s application is directed is said to be the first respondent’s amended application filed 14 March 2008. Ultimately, the summary dismissal application was based on the rule 10.12(c) and (d), that the principal application and application for the issue of subpoenas were frivolous and vexatious and that they had no reasonable likelihood of success.

6. Although the court file notes that an application was filed on 14 March 2008 and an affidavit by the first respondent was filed on that date, no application bearing a court filing stamp dated 14 March is on the file. There is on the file what purports to be an amended application which bears the court filing stamp for 23 April 2008. This stamp has been crossed out and this change has been initialled by an unknown person. This application is not signed by the applicant, and under the place where it should be signed it bears the date 13 March 2008 which is struck out. On the front of the application, in the box reserved for court use is the date 14 March 2008, where the filing date is normally noted. Where the “court date” is noted is 23 April 2008, the same date as the court stamp.

7. Although I have a strong suspicion this box has been filled in by the first respondent rather than the Court, and this document has been substituted later for the originally filed initiating application, which has improperly been removed from the file, rather than dismiss the respondents’ application purporting to be made on 14 March, I shall overlook non-compliance with the rules and dispense with them so far as they have not been complied with and regard this document as the application of 14 March 2008 which the Director-General seeks to have summarily dismissed. It is certainly the document which I considered when I decided that the parties should address me on the issue of whether s. 118 of the Act should be applied to dismiss the proceedings summarily. I shall refer to the application supposedly filed on 14 March 2008 as the Amended Initiating Application.

8. The final orders the Amended Initiating Application seeks are:

   1.The Court to declare that [Mr C] had no power/right to sign the application as the applicant, to seek any order therein in relation to the child [B] and to institute the proceedings No. SY6727 of 1998

   2.The Court to declare that the document attached to the affidavit, marked “A” and named “Watch List Orders” from 17.07.1998 is invalid/void/null

   3.The Court to declare that the document attached to the affidavit, marked “B” and named “First Return Orders” from 17.08.1998 is invalid/void/null

   4.The Court to declare that the document attached to the affidavit, marked “C” and named “Second Return Orders” from 09.09.1998 is invalid/void/null

   5.The Court to declare that the document attached to the affidavit, marked “D” and named “Possesion Orders” from 29.09.1998 is invalid/void/null

   6.The Court to declare that the document attached to the affidavit, marked “E” and named “Care Orders” from 29.09.1998 is invalid/void/null

   7.The Court to set aside the Watch List Orders from 17.07.1998 as declared invalid/void/null or on the ground that the said orders were obtained by fraud

   8.The Court to set aside the Second Return Orders from 09.09.1998 as declared invalid/void/null

   9.The Court to set aside the Possesion Orders from 29.09.1998 as declared invalid/void/null or on the ground that the said orders were obtained by fraud

   10.The Court to set aside the Care Orders from 29.09.1998 as declared invalid/void/null or on the ground that the said orders were obtained by fraud

   11.The Court to declare that the Applicant on or about 29.09.1998 had natural and legal custody (parental responsibility) of his child B

   13.The Respondent to this application to pay the costs of the hearing of this application

   14.Further orders as required

9. Order 12 was not pressed.

10. On 16 June 2009, the first day of the hearing of the applications I am now dealing with, I granted the second respondent the right that he sought; to be joined as second respondent to the s. 118 and rule 10.3 proceedings as well as principal proceedings. He said he had an interest in B’s welfare. I also permitted the first respondent to file another initiating application in court. It sought interim orders in these terms:

    a)   The Court to declare that there were no proceedings in 1998 between the Director-General of the Department of Community Services of NSW and [Mr D Morevic]

    b)     In alternative to 1) the Court to declare that the proceedings in 1998 were instituted irregularly or illegally

    c)     The Court to enter summary judgment against the Respondent under Part 10.3 of the Family Law Rules granting all the orders sought by the Applicant

11. There is no need to deal specifically with this application at this stage. It will only remain of relevance to the principal proceedings if I do not dismiss the initiating process of 14 March 2008 summarily. Nevertheless, the issues raised by each may be determined collaterally in deciding whether or not to dismiss the respondents’ other applications summarily.

12. The first respondent is a person of exceptional intellect. Before he became a disability pensioner he worked in a technical professional capacity. He holds a degree. His brother, the second respondent, appears to me to be of equal intellect.  

13. The first respondent is an Australian citizen who had migrated here in 1991, had been married in Country D in November 1996 and had had a daughter to his wife. The daughter, B, was born in May 1997 in Country D. It was alleged by the Director-General that the mother had remained in Country D, that the first respondent had wrongfully brought the child to Australia from Country D and that they had arrived on 17 April 1998 when the child would have been 11 months old. Beforehand, the first respondent is alleged to have lived in a city known as E City from the time of his marriage until arriving back in Australia.

14. The mother alleged she and the first respondent had separated on 9 March 1998. She said that on that date the first respondent forced her and B from their home and thereafter they lived separately, with B having contact with the first respondent by her agreement. She said that, on 12 April 1998, the first respondent pretended to take the child for a walk but instead took her to Australia.

15. The mother approached the Welfare Centre of E City where, according to the usual procedure, it was decided that the child should remain in the mother’s custody pending determination of court proceedings for divorce and her custody. It was alleged, on the mother’s behalf, that on 15 April 1998 a judge of the Primary Court of E City, in ex parte proceedings brought on behalf of the mother, confirmed that the child should, in the interim, live with her.

16. The Director-General now asserts that on 16 July 1998 an application under the Family Law (Child Abduction Convention) Regulations (Hague Convention) was filed on behalf of the then Director-General seeking orders for the child’s return to the mother in Country D. The respondent named in the purported application is the first respondent. The Director-General claims that, in filing this document, I.V. Knight, the Crown Solicitor at the time, who was during the proceedings before me acting for the present Director-General, was acting as the solicitor for the Director-General. Mr. C, who was then a solicitor in the employ of the Department of Community Services, signed the application. This document indicates the then Director-General was claiming to act as the responsible Central Authority pursuant to the Hague Convention.

17. The Central Authority took the stance that it was empowered to act on behalf of the mother, or the Ministry of Labour and Social Policy of Country D, to obtain the child’s return to Country D. The Director-General asserts that Hague Convention proceedings were first heard by Judicial Registrar Johnston, as he then was, on 31 July 1998. The Director-General claims the then Director-General, Ms F, was represented by Counsel, then Ms G, now a retired Family Court judge, and the first respondent appeared in person and unrepresented. It is of critical importance that the Director-General alleges that the Director-General at the time sought and attained an adjournment on that date because the delegation of Mr. C to act for her as the Central Authority was defective. Whether or not the first respondent consented to the adjournment is irrelevant. It is sufficient to know that the Director-General claims that the adjournment was granted to 11 August 1998. According to her, the Judicial Registrar heard the matter on 11 August 1998, and on 17 August is said to have made final orders for the child’s return to Country D. On 20 July 1998 another judicial registrar, it is asserted by the Director-General, had ordered the placement of the name of the child on the Airport Watch List and ordered the surrender of the child’s passports

18. As was his right, the first respondent lodged an appeal by way of rehearing. Rowlands J. is alleged by the Director-General to have heard the matter on 3 and 7 September 1998. The respondent was present at the hearing and the counsel supposedly representing the then Director-General was Ms G. Rowlands J., according to the record and file, heard the appeal and on 9 September 1998 ordered B’s return to Country D but granted a short stay of his orders for the purpose of permitting the first respondent to appeal.

19. The first respondent then appealed to the Full Court consisting of the then Chief Justice, The Honourable Justice Nicholson, Kay JA. and O’Ryan J. The Director-General says the Full Court decided the appeal on 29 September 1998. The alleged record of the Full Court’s judgment notes that Ms G and the first respondent appeared at the hearing, that Nicholson CJ delivered an ex tempore judgment,  that Kay JA. and O’Ryan J. agreed with his honours reasons and that Kay JA. added some references to the difficulty trial judges then had in Hague Convention applications when there were disputes over fact.

20. Some of the supposed observations which are attributable to Nicholson CJ, if his judgment is genuine, are, with great respect to him, remarkably consistent with my own observations of the first respondent and the manner in which both respondents conducted the proceedings before me. If his judgment is forged, as the respondents claim, the forger has demonstrated a level of skill which suggests he should abandon forgery because such skill should augur a future chief justiceship. It is even more significant that, in the claimed judgment, it was pointed out that, in the proceedings before Rowlands J., the first respondent’s version of events was that it was always his intention for the mother to follow him and the child to Australia, that the mother knew this but in claiming he abducted the child she was engaged in a conspiracy against him. If it was the Chief Justice who delivered the judgment of the Full Court, he found in paragraph 46 that Rowlands J. was not in error in finding and was entitled to find that the first respondent had made up this version because there were objectively known facts which were quite inconsistent with it. In relation to another argument, the alleged judgment suggests the first respondent feigned illness in an attempt to gain a perceived unfair advantage and in relation to another argument he demonstrated a lack of good faith in relation to the appeal.

21. There are two other documents which on their face appear to be judgments of the same Full Court, also delivered on 29 September 1998. In one, if it is genuine, the Full Court refused the first respondent’s application to adjourn the hearing of the appeal. In the other, also if it is genuine, very importantly, the Full Court refused the first respondent’s application for a stay of the warrant directing the child be delivered to the NSW Department of Community Services pending an appeal to the High Court.

22. The copies of the document which purports to be the judgment in the latter application and the documents which purport to be the orders of the Full Court dismissing the first respondent’s appeal to it, refusing the stay of orders pending an appeal to the High Court and ordering the issue of the warrant are before me. Those containing the purported results of the appeal and application associated with it by way of orders are conveniently annexed to the first respondent’s affidavit made on 13 March 2008 and filed on 14 March 2008 as are the alleged orders of Judicial Registrar Johnston of 17 August 1998, and the alleged orders of Rowlands J. of 9 September 1998.

23. The copy alleged orders of the Judicial Registrar and of Rowlands J. contain on each page what purports to be the seal of the Family Court of Australia. All such copies also appear to be signed respectively by the Judicial Registrar and Justice Rowlands. Both sets of alleged orders of the Full Court contain the image of the Court seal on each page and appear to be signed by M Lawson, a deputy registrar, on behalf of the Court. I am very familiar with the signatures of Rowlands J. Judicial Registrar, now Justice, Johnston and Ms Margaret Lawson who was to my knowledge at all relevant times a deputy registrar of the Court. All signatures and the seals on the documents seem to me to be genuine. There is no credible evidence that they are not.

24. Section 150 of the Evidence Act, 1995 (Cth) deals with seals and signatures. By subsection (1)(e) of that section, if the imprint of a court seal appears on a document and purports to be the imprint of the seal of a court it is presumed to be genuine and that the document was duly sealed unless the contrary is proved. By subsection (3), if a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that the document was signed by the office holder acting in that capacity and that the office holder held the relevant office at the time the document was signed. By s. 157 of the Evidence Act; evidence of a public document of the Family Court of Australia; and judgments and orders of the Family Court are such public documents, may be adduced by producing a document which purports to be a copy of the public document which purports to have a seal of the Family Court, or purports to be signed by a Judge or other officer of the Family Court.  Judicial Registrar Johnston and Ms Margaret Lawson, as a deputy registrar of the Court, were at all relevant times proper officers of the Court. Rowlands J. was a judge of the Family Court. There is no evidence to contradict these facts.

1. Also in evidence is a transcript of the first respondent’s application for a stay pending application for leave to appeal to the High Court before Gaudron J. which took place on 13 October 1998. Ms G and the first respondent appeared as they had before the Full Court. The application was refused. This aspect of the record of the proceedings is not challenged by the respondents. In it, the first respondent made admissions that there had been hearings before Rowlands J and the Full Court. He did not demur when Justice Gaudron said in response to Ms G’s question about which documents the first respondent had filed for the purpose of the stay application “I have a judgment of the Full Court and a judgment of [Mr.] Justice Rowlands and a judgment of the Judicial Registrar”.  During his address, the first respondent said at p 3.1 of the transcript, “I accepted the decision of the Full Court that the child should return to [Country D], that I lost that case……..

   ………….I realise that with that decision the child is returning back to [Country D] under the care of her mother. Initially, when the Full Court brought down that decision I was ready to go to the High Court…..”

2. The first respondent also informed Justice Gaudron that he had decided that B should return to Country D to be cared for by her mother and had even sought an order from Justice Rowlands to ensure her urgent return. At p 7.2 of the transcript the first respondent, in asking for a stay of the “order by Justice Rowlands…., order No 2 by Justice Rowlands”, admitted the order was valid. When on numerous occasions Gaudron J. asked the first respondent what he was submitting was the error of the Full Court he did not at any time suggest the document, which appears to be its relevant judgment, was not actually its Judgment. He did say, at transcript  page 8.4, this:

   Throughout the trial a number of documents emerged and I accepted those documents as certified documents, no, as invalid and non-certified documents, unauthentic. All the documents on the opposite side were documents with a doubtful – of doubtful origin, without any signature or without any stamp.

   Her Honour’s response was:

   Well now, it is not sufficient just to talk in terms like that. I must be directed to them. If there is to be an arguable case of error, I need to have it made clear to me precisely what it is.  

3. The first respondent did not tell her Honour what specific documents he was suggesting were invalid, non-certified or unauthentic. He simply put all the documents relied on by the Central Authority into question. That issue was raised and dealt with by the High Court when her Honour ultimately held that there was no appellable error by Rowlands J. or the Full Court.

4. The respondents now say that all the judgments and orders and the warrant itself, from those of JR Johnston to those of the Full Court are forged, false and/or technically defective to the extent that  they are null and void and that, at least, they have not been proven. They submit that the Director-General has the onus of proving their authenticity and has not discharged that onus because he has not called evidence by way of affidavit or oral evidence from the Judicial Registrar, Judges, Deputy Registrar and others to prove, as she should, that the documents and judgments attributed to them are signed by them or certified by them on behalf of the Court and therefore genuine and valid.

5. There is also a claim that the original document, which was filed on 16 July 1998 and upon which the then Director-General relied to have commenced the Hague Convention application, was not valid or effective or even a document of the entity which had the power to bring proceeding as the Central Authority and that the document is a forgery because the person who is recorded as having been the applicant and as having made the application did not do so. For good measure, the respondents submitted that Ms G and Ms Ward of Counsel, who announced her appearance before me as Counsel for the Director-General, appeared without instructions.

6. Despite what the first respondent said to Justice Gaudron, I was informed by the respondents that the child has been taken from the first respondent’s home by “bandits” posing as plain clothes Australian Federal Police. The respondents both alleged that in doing so those “bandits” committed trespass to the person and to property and they suffered nervous shock as a result. This has, they say, prevented them from working. Their cause for nervous shock in the Supreme Court against the Director-General is based on these allegations. How the Director-General or the State or Commonwealth could be liable if the “bandits” were not actually federal police was not made clear to me. It would be strange, and an exceptional coincidence, if the warrant issued by the Full Court is genuine, or even if it is not valid but was issued by judges of that Court, that people who were not relying on a genuine warrant and posing as federal police might attend the home where the child was being kept and seize the child so she would be returned to Country D when, with the first respondent’s subsequent consent and even at his urging, as the first respondent told Gaudron J. was the situation, the child was to be taken to Country D, yet the federal police  would have seized her pursuant to a warrant issues by a court for that purpose if she had not already been sized by “bandits”. One might ask why nothing more has been heard from the mother if the child had not been returned to her in good health. The respondents do not suggest she has not been so returned.

7. The evidence of the respondents appears to raise certain additional or complementary matters which they rely on. I shall list these. They are:

   a)   the first respondent was not aware that any judicial officer of the Family Court engrossed the watch list orders and return orders which on their face seem to have been made by judicial registrars on 20 July 1998 and 17 August 1998 respectively and Rowlands J. on 9 September 1998 – Whether or not he was aware is irrelevant;

   b)     the supposed Full Court orders were not made in Court during the hearing of the appeal and the first respondent does not recall the Full Court ordering the engrossment of the orders – If these facts are proven they would be irrelevant;

   c)     annexed to the first respondent’s affidavit sworn on 22 April 2008 is a statement of a Ms H. It asserts that Ms H worked at the Department of Community Services and was familiar with the matter involving the child at the time and attended the Full Court hearing on 29 September 1998. She says “we briefed the Crown Solicitor. [Ms G] was Counsel briefed in that matter on 29 September 1998” – This seems to me to be an admission contrary to his interest by the first respondent and therefore good evidence of these facts which she asserts. She says she heard Ms G apply for the warrant. That, too, seems to be prima facie evidence of the genuineness of the warrant.

   d)     annexed to the affidavit of the first respondent sworn 25 August 2008 and filed the same day is a statement of Maria Rizzo, a solicitor who was employed by the NSW Crown Solicitor at relevant times. She says she instructed counsel, Ms G, on behalf of the Crown Solicitor in the Full Court on 29 September 1998. She recalls orders made by the Full Court for the warrant for the child’s possession to issue. She also said that Ms G had a copy of the orders the Full Court had made on 29 September 1998. She actually says “29 October 1998”. - It is quite clear from the context that this is a typographical or like slip or error and she was referring to 29 September 1998 in the statement where “29 October 1998” appears. This evidence strongly supports the fact that the Full Court actually made orders which appear on their face from the documents in evidence to have been made by the Full Court on 29 September 1998;

   e)     on 30 July 1998, the first respondent filed an application for residence of the child, the mother being the respondent, in the same proceedings as the supposed application for the child’s return to Country D was filed. The husband denies ever having been served with “the initiating application filed by the NSW Central Authority or at all”. – He certainly had sufficient notice of it. That is enough to serve the interests of justice even if he was not formally served. In the circumstances, there is no need for formal service.

8. The first respondent filed written submissions on 25 August 2008, 21 October 2008, 15 January 2009 and 14 April 2009. After 16 June 2009 when the second respondent became a party, the respondents filed written submissions on 29 July 2009. All these submissions are relied on by the respondents. The course of events which resulted in these submissions being made and the ultimate hearing for summary dismissal of the respondents principal application need to be described briefly.

9. The matter initially came before me because the Director-General had informed a deputy registrar that she proposed to apply for summary dismissal. In response to this the first respondent wished to issue certain subpoenas. His application was filed on 25 August 2008. Those proposed to be subpoenaed , all to attend to give oral evidence, are listed in his written submissions filed at the same time and are:

   1.Ms. F, who had been the Director-General of the Department of Community Services at the time of the purported commencement of the Hague Convention proceedings in 1998;

   2.Ms. H;

   3.Mr. C, the solicitor in the Department who signed the original Hague Convention Application;

   4.Mr. I. V Knight, the NSW Crown Solicitor;

   5.Mr. Mark Twohill, the solicitor who has been the solicitor at the Crown Solicitor’s office who had conduct of the Hague Convention proceedings;

   6.Ms. Rizzo;

   7.Justice G, as she was by the time the respondents asked to subpoena her;

   8.Mr. J, in 1998 the Secretary of the Commonwealth Attorney-General’s Department who was appointed by the Regulations as the Commonwealth Central Authority for the purpose of the Hague Convention Regulations;

   9.Ms K, in 1998 an employee of the Commonwealth Attorney-General’s Department;

   10.Mr L, in 1998 Ms K’s immediate supervisor;

   11.The Honourable Alistair Nicholson AC RFD QC as he now is;

   12.The Honourable Alwynne Rowlands AO RFD QC as he now is;

   13.Ms. Margaret Lawson, now retired, who was in 1998 a deputy registrar of the Family Court of Australia.  

10. The application to issue subpoenas sparked my reaction to require the first respondent to show cause why I should not summarily dismiss the principal proceedings pursuant to s. 118 of the Family Law Act. Summary dismissal would mean that there would be no purpose in issuing the subpoenas. In considering summary dismissal, it is necessary to determine whether if all or any of these subpoenas should be issued because they are reasonably necessary to prove and are reasonably capable of assisting proof of any matter which might advance the respondents’ case to the extent that they might warrant refusal to make a s. 118 order or, as the Director-General has sought, summary dismissal pursuant to rule 10.3.

11. The application for final orders, application to issue subpoenas and submissions, on their face, are obviously those of the very type of litigants that s. 118 is directed at; the type of persons every lawyer experienced in litigation is familiar with; the type of persons who to any layman seem to be, as they seem to me as a layman to be, manipulative, clever but unbalanced and disturbed, unwilling to accept the umpires decision, obsessed with their cause, claiming to have been unjustly treated by the courts, and alleging a wide ranging and exceptionally complex and difficult to carry out conspiracy against them by a large group of people in circumstances where it would ordinarily be highly unusual to find even one corrupt person in such a group.

12. Nevertheless, there is something at the heart of what, I as a non-expert, would call paranoia if I did not suspect that the applicants do not really believe that there has in fact been a conspiracy against them but are using the few facts they can muster and which they think might achieve their end to gain an award of damages in the Supreme Court. At the heart of all their claims is their claim that Ms F, when she was the Director-General of the Department of Community Services, did not authorise the initiation of the Hague Convention proceedings. What is, on its face, the judgment of Judicial Registrar Johnson, whether it is his or not and whether it is valid or not, succinctly explains in paragraph 9 what I am satisfied, from the submissions of the respondents and the material under TAB 3 in Exhibit “C”, is the situation. The part of paragraph 9. I refer to is:

    On 31 July 1998 the father appeared and was assisted by Mr Stewart as amicus curiae. There was a technical defect in the application by the Director-General. This related to a defective delegation by the Director-General of her powers and functions under the Family Law (Child Abduction Convention) Regulations. The Director-General sough an adjournment and this was granted, the matter being adjourned to 11 August 1998……

    ……..the adjournment has had the effect of enabling the Department to rectify the technical defect. It has also permitted the respondent father to file further affidavits in these proceedings.

13. What actually happened is that Ms M, who was Ms F’s predecessor, had ceased to be the Director-General when the Application under the Hague Convention dated 17 July 1998 sworn by Mr. C was filed on 20 July 1998. Mr C’s delegation by Ms M made on 10 March 1997 had therefore expired and he was no longer able to act on behalf of the Director-General because the incoming Director-General, Ms F, had not made a delegation to him. This was cured in the period between 31 July 1998 to 11 August 1998. This is the basis of the submission by the respondents to the effect that the proceedings were not authorised because the delegate of Ms F acted without authority.

14. The respondents overlook the fact that the defect was cured. Certainly, by the time the matter was heard by Rowlands J., there was no such deficit. Nor was there when the Judicial Registrar heard it. As the rehearing before the single judge then appeal to the Full Court could have canvassed this issue at the relevant times, the issue merged in the judgments of Rowlands J., then the Full Court if these are really the judgments that they appear to be.

15. It is convenient to note, at this stage, that I do not have the power to set aside a judgment or order of the Full Court on the ground that it was obtained by fraud. However, if the documents appearing to be judgments and orders are forged or otherwise invalid ab initio they do not have to be set aside, and cannot be, but I do have power to declare them to be void ab initio and of no effect if they are not the judgments or orders of those they purport to be.

16. The effect of the merger of the finding about the effectiveness of Ms F’s delegation of power and functions under the Hague Convention Regulations is that no evidence Ms F could give before me could advance the respondents’ case. They should not have leave to subpoena her. It would not matter if she did not have personal knowledge of all or any of the steps taken after the delegation was perfected, or did not specifically authorise each step. The general delegation was sufficient to make the proceedings valid. Nor would it matter that at the time the original application was made, supposedly on Ms F’s behalf, there was no authority in Mr C to file it, despite the continued reliance on that original application. The Rules of Court which were in force at the relevant time, by order 4 r. 1, permitted dispensation from compliance with the rules. The Court, at no time, attempted to enforce the rules strictly by requiring the then Director-General to file another initiating application in place of that which had been filed. It can be assumed to have implicitly permitted the originally unauthorised application to be relied on once Ms F had made an effective delegation to Mr C to commence the proceedings. Thus, once the delegation was made Mr. C was entitled to and had proper authority to continue the application under the Hague Convention. It did not matter that, initially, the application was defective. It became effective once Mr. C became Ms F’s delegate. He had become her delegate before the hearing before Johnston JR. commenced.

17. The submissions in relation to the application to issue subpoenas to Ms Rizzo, Ms H, the Honourable Ms G, Mr C, Mr Knight and Mr Twohill are to the effect that they are to be used to question each of these persons to show that Ms F was not involved in the proceedings because she did not ask each to be involved in each and every step. The respondents expect them to say they did not hear the Full Court make the possession and related orders during the hearing of the appeal, and were not aware of the documents which purport to be its orders and the judgments purporting to be the judgments of the members of the Court. They allege that the judgments themselves could not be seen during the actual hearing. In some manner, this is said to be proof that they were not delivered. They were no doubt heard and later published after being transcribed, edited and certified. However, that they were is of no moment. It is the documents which purport to be the orders which are critical. They appear to be signed and sealed; signed by the deputy registrar and sealed with the Court seal.

18. Order 5 r. 1 of the Rules of the Court which were in effect at the time provides for a seal in the form which is on the supposed orders. Section 150 of the Evidence Act, 1995 (Cth), provides that if an imprint of a seal appears on a document and purports to be the seal of a court of the Commonwealth, it is presumed, unless the contrary is proved, that the seal is genuine and the document was duly sealed. It also provides that if a document purports to have been signed by an office holder; which would include a judge, deputy registrar or judicial registrar in his or her official capacity, it is presumed that the signature is genuine because the document was signed by the officeholder acting in the capacity he or she purports to have acted and the officer holder held the office when the document was signed.

19. By s. 157 of the Commonwealth Evidence Act, evidence of a judgment or order of an Australian court may be adduced by producing a document that purports to be a copy of the judgment or order which purports to be sealed with the seal of that court or purports to be signed by a judge, registrar or other proper officer; and proper officer would include a deputy registrar such as Ms Lawson, of that court. The documents annexed to the first respondent’s affidavit appear to comply with s. 157 in more than one way when one way would have been enough to make them admissible to prove and to be proof of the validity of the orders in the absence of proof to the contrary.

20. The orders contain both the seal on each page and purport to be signed in the case of the orders of the Judicial Registrar and Rowlands J. by themselves and in the case of the Full Court by Ms Lawson. It is the accepted practice that a deputy registrar such as Ms Lawson would prepare and sign its orders after they had been made orally. The authenticity of the signature of the Judicial Registrar, Rowlands J. and Ms Lawson have not been questioned. Nor have the seals. There is no evidence before me to suggest that the apparent orders of Johnston JR., Rowlands J. and the Full Court are other than genuine. There is abundant evidence that they are, including  the unchallenged transcripts of the proceedings in the High Court in which the first respondent not only made admissions that the orders of the Full Court were genuine, Gaudron J in effect found  that they were by refusing to stay them. The orders are not only presumed to be genuine, there is no reasonable prospect that the calling of any of the above mentioned witnesses by the respondents will make any difference or help prove the respondents’ case for saying the orders are forged or otherwise invalid.

1. The respondents wish to subpoena Mr J, Mr L and Ms K to prove that Ms Rizzo, Ms H, Mr Knight, the Hon. Ms G and Mr. Twohill and Mr C all acted at the direction of Mr L and Ms K. In some way, they also wish to question Ms K and Mr L to prove the apparent orders and judgments are all counterfeit. Mr J will be asked about his personal knowledge of the judgments and orders. Nothing they might reasonably be asked or say is relevant to the validity of the orders. The judgments themselves do not really matter, because the Full Court judgment was not the subject of a successful appeal. It is the orders which matter.  There is not a scintilla of evidence which might make me think there is any reasonable prospect of establishing, on balance, that any seeming orders made in the proceedings are counterfeit. It would not be reasonable or effective to allow subpoenas to be issued to Mr J, Mr L and Ms K.

2. Leave pursuant to s. 16(2) of the Evidence Act is necessary before the Honourable Mr A Nicholson AO RFD QC and the Honourable Mr A Rowlands AO RFD QC can be subpoenaed.  There would have to be a good reason to grant such leave. The application to subpoena the judges who sat in the proceedings is even more frivolous and vexatious than the other applications which have been made for subpoenas to issue. They should not be issued. If they are they have no prospect of proving anything which might assist the applicants.

3. Ms Lawson will be asked if she has knowledge of the orders of the Full Court and how they came to be created and circulated. The respondents’ idea is to show they were not the orders of the Full Court that she signed on its behalf. There is no realistic prospect that the respondents could succeed in their quest to prove this.

4. The written submissions relied on by the respondents and the oral submissions add nothing of substance to those which I have dealt with in more detail. Although the product of intelligent and cunning minds, they are the misguided manipulative and or paranoid ravings of vexatious and frivolous litigants. They have no realistic prospect of success in the cause they have brought before this Court. The proceedings for the issue of the subpoenas and for final orders are frivolous because the case brought in each instance has no weight. They are vexatious because both applications impose upon the Court, those sought to be subpoenaed and the Director-General undue trouble, inconvenience and cost in circumstances where the respondents’ case has no weight and could not reasonably have any.

5. Relief by way of summary dismissal pursuant to the rules should not be lightly granted. That relief should only be granted if it is shown that on the prima facie case of the applicant that he has no reasonable prospect of success or the application is an abuse of process or frivolous or vexatious. A prima facie case in the Family Court consists of the evidence and/or the allegations. Here the evidence and allegations clearly demonstrate that the issue of subpoenas would not in any way advance the respondents’ case. The principal case itself can fairly be described as misconceived, incapable of improvement by amendment or the calling of any evidence which might reasonably be regarded as available, and hopeless.

6. I should and shall refuse to grant the respondents leave to issue any subpoenas to those listed above on the grounds that they are frivolous and vexatious and have no reasonable prospects of being of any advantage to the respondents and I should and shall summarily dismiss the principal proceedings on the same grounds.

7. I shall summarily dismiss the respondents’ application filed 25 August 2008 and the Amended Application said to have been filed by the first respondent on 14 March 2008 and bearing the filing date of 23 April 2008, the stamp of which appears to have been struck out being whole proceedings brought by the respondents Mr D Morevic and Mr O Morevic on the grounds in s. 118 of the Family Law Act and the rule 10.12(c) that in each instance the proceedings are frivolous and vexatious and on the ground in rule 10.12(d) that they have no reasonable prospects of success.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 1 March 2011.

Associate:     

Date:              1 March 2011