DWC v BVC

[1997] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  Nos A15 of 1995, A17 of 1996 and
  A14 of 1997

B e t w e e n -

DWC

Applicant

and

BVC

Respondent

Applications for special leave to appeal

BRENNAN CJ

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 11.40 AM

Copyright in the High Court of Australia

MR DWC:   My name is DWC.  I am representing myself because of the failure of the Legal Services Commission to supply me with a solicitor.

BRENNAN CJ:   I should say that the Deputy Registrar has been informed by Messrs Robinson and Mason, solicitor for the respondent in each of these matters, that the respondent does not wish to have any representations made on her behalf at the hearing and will abide the decision of the Court, save as to costs.

MR C:   That is right, your Honour.  I believe - - -

BRENNAN CJ:   Now, before you commence your argument, Mr C, for some reason or other this matter has been given the title of “DWC v BVC” instead of the full name.

MR C:   Yes, I am not very impressed, I do have a name.  My name is DWC, and I prefer to be referred to as my name, not an initial.  So, I believe that is just a matter for listings, is it?

BRENNAN CJ:   Mr C, the reason, I gather, for the use of the initials is because one of the matters involves a question of custody of children and it is customary not to identify children by their full name.

MR C:   Right.  I would ask, in relation to - unless - my wife could not appear in this Court because of the number of times that I have stated that she lied on nearly every court document, and it has been given orders by all the lower courts.  What I would just say is that, if your Honours have actually read the application book, special leave to appeal, I believe it is automatic to an actual appeal to the High Court.  In referral to the documents I filed on Wednesday - - -

BRENNAN CJ:   It is not automatic, Mr C, it is - - -

MR C:   Well, it is if you have read the document and you - unless you can substantiate one area in my application as an untruth, therefore, it has the right to go to the High Court as an appeal.  There is not one area in that application that you could - if you went through every minor court - find to be an untruth - - -

BRENNAN CJ:   No, let me explain it to you, Mr C.

MR C:   Right. 

BRENNAN CJ:   There is no case which comes to this Court on appeal in which there is a right to appeal, no matter what has happened in the courts below.  Cases come to this Court only when they raise some matter of general public importance or when, for reasons associated with the administration of justice, the Court exercises its discretion to allow an appeal.

MR C:   Well, that is what my application - special leave to - the right to special leave to appeal to the High Court clearly spells out, self‑explanatory, the reasons of that right, which is why I am assuming that it should be automatic.

McHUGH J:   Well, it does not spell them out, Mr C, because your statement consists of assertions - - -

MR C:   Well, it does not spell it out if you - - -

McHUGH J:   - - - and it does not raise any question of general importance.  It deals with the particular facts of the case and does not even attempt to formulate a special leave question.

MR C:   Unless you cannot read or substantiate the required relevance of a document, I will just have to go through the application books to actually - my special leave to appeal to actually convince you, and then you can tell me why you think you made that amazing statement just right now.  Which case are we hearing first?  In relation to custody, one section where I have an authority are Horman v Horman and Evers v Evers, where the social unacceptance standard - I will probably need to close this Court to discuss - for the sake of my children to discuss the document that Judge Gun failed to address, in which I have an authority which also confirms that he struck out evidence in regard to the care of children from eight to 14, a daughter 14 years of age, documentation that would shock Australia if released to the press, and the minor courts refused to take it into account, and you actually just addressed me to say you do not believe this documentation.  I have an address to the Court on both sections.

The other thing I wish to ask is, in relation to property and custody, which application would I be able to address first?  I have two separate appeals to the Full Court, property and custody - two separate issues - and I have an address to yourself, the three Judges, in relation to the relevance of the special leave to appeal application and its importance.  Can I ask if those authorities that I filed on Wednesday in the High Court, two days before - under rule - section 40 - the authorities, if yourself, your Honours, have addressed those - - -

BRENNAN CJ:   We have the papers here.  For my part, I have not read those.

MR C:   Good, because I have to go through them before you make an error.

BRENNAN CJ:   Well, you will have 20 minutes, and that is your time, so you determine how you wish to use it.

MR C:   So, I have 20 minutes in regard to custody and 20 minutes in regard to property?

BRENNAN CJ:   No, you have 20 minutes in relation to - - -

MR C:   I have two appeals to the High Court of Australia.  The property is ‑ I have losses of 22,500 - my children and myself - and custody - I have a 16-year-old boy in charge of my children while my wife is at work.  So, which application can I address?

BRENNAN CJ:   Well, it would seem as though, if you have, as you have, two applications, then you are entitled to time in relation to each of them.

MR C:   Thank you.

BRENNAN CJ:   And so, you may proceed on that basis.  But I must tell you that the Court will not entertain any submissions that are made which are simply allegations or contentions which are not relevant to our consideration of the question of whether we should grant you special leave to appeal.

MR C:   So, I lost employment when I had qualifications, and I lost employment in South Australia on about five occasions in relation to the wife, and she was then granted custody of my children and you are saying those things cannot be substantiated when I had done Institute of Australia Management courses in relation to those things, in which, on the documentation that Judge Gun failed to address, I spelt out to him the areas of sections where I left my job because of my children.  I was dismissed because of my wife, because they did not want me in the positions because of the circumstances surrounding my wife, and I believe these all these situations need to be addressed, not just have - tell me that I do not have a right to a High Court appeal.  I will start with custody, if you like, your Honours.

BRENNAN CJ:   Mr C, these matters are obviously of great importance to you.

MR C:   Well, in the care of three children, they should be addressed.

BRENNAN CJ:   Yes, I understand that.  Now, you have, therefore, the opportunity of addressing this Court to obtain special leave to appeal on these matters, and it is very important to you that you should be able to do so, and do your case the best justice that you can.

MR C:   Well, I have authorities and law - sections of law in support.

BRENNAN CJ:   Now, just a moment.  What I am suggesting is this; at the moment it seems that you have a number of matters that you want to address.  Your best interests would be served, if I might say so, by taking a few minutes to put together, in an orderly fashion, the thoughts that you want to express in order to support your application in each of these cases.  Now, would you - - -

MR C:   Well, I am a step ahead of you, your Honour.  I have done that.  I have an address to the Court written out in numerical order, in which I wish to discuss the authorities, the sections of law in both circumstances.  So, I am prepared and I have those - - -

BRENNAN CJ:   All right.  We are going to suggest to you that you might like to take a little time before you come back to the Court, as it were, to present them but, if you are ready to go ahead, you go ahead.  Whichever you prefer.

MR C:   Well, I have had them prepared for ages and I do not wish - need to have any other thoughts about it.  I just have the documentation and the authorities and the sections of law in my favour.  In relation to custody, the first document I would like to read out to the Court is the notice of appeal, which is page 55 and 58 of the application books.  You have already read those documents.  In relation to custody, you have advised me that you have actually read the document but if - - -

GUMMOW J:   You were taking us to a particular page, I think.

MR C:   Right, page 55 is my draft notice of appeal is page 55 and 56 of the application books.  55 is the grounds:

Judge Gun failed to properly assess the obvious regarding the case by trial documentation, and the truth, and was influenced (by his own admission) to the biased and gullible report of welfare officer Ms. Helen Prowse.

McHUGH J:   If I could just stop you there, Mr C - - -

MR C:   Yes, I can extend on all these things.

McHUGH J:   - - - because that is what I spoke about when I was saying that your documentation consists of assertions.  You allege that the report was biased.  Now, the trial judge did not accept that was so.  He acted upon Ms Prowse’s report, or, at least, he was heavily influenced by it, and Ms Prowse’s report was very prejudicial to you in the sense that it was very much against you.  Now - - -

MR C:   Yes, I was unemployed for eight years in relation to my wife and judge - - -

McHUGH J:   Well, just hold on for a moment.  Now, where is the evidence that the report - that the welfare officer was biased?

MR C:   Well, I refer to my summary of argument, a supplementary document, in which I went through the orders of the Full Court of Australia in relation to every section where they stated where they were in error in regard to the Prowse report, which I annihilated on that document.  It is page  - I will have to - - -

GUMMOW J:   Just take your time.

MR C:   Yes.  It is the document I filed on - with the documents I filed two days ago in regard to - - -

GUMMOW J:   Well, there were two bundles, were there not?

MR C:   There was one custody and one property, but they were all in order of sequence in which I intend to address the Court.  If I could go through my documents, I would get to those documents at each level - which you said to take a few moments to think about it.  I actually have an address in order which I can go through which will get to those circumstances at every point, if I could do that preferably.

McHUGH J:   Very well.  I have identified to you what my problem is at the moment, so you take us to them in your own way.

MR C:   Okay.  Well, I am still on the draft notice of appeal and, if I have to convince you, well, I will.  I was out of work for eight years because of my wife.  In regard to the children, I was in care of the children for those circumstance.  At the trial, Helen Prowse was asked by my solicitor how she thought about the documentation, which would shock Australia if released, in regard to why I was out of work because of my wife.  I asked him to specifically ask her had she read that document.  She said yes.  If she thinks that document - and Judge Gun thinks those documents are not admissible, I suggest that every pimp in Victoria and South Australia would be at Judge Gun’s front door for his children and his grandchildren, without giving my children to a 16-year-old youth while my wife is at work.

The document states - I then stated that Helen Prowse was gullible, which she was.  My lifestyle documentation in - coming up in the future will verify that.  Judge Gun also failed to address, or struck out totally relevant issues of enormous consequence in favour of the wife - I have authorities in support of that, which I will follow up with - and the continued incorrect judgments and reasons of judgments by the Full Court, the Family Court of Australia in support of trial judge Gun against the now confirmed and provable truth to be judged by the High Court of Australia - all documents currently and previously lodged.

My next statement is I believe truth and justice should prevail through the courts and, in this case, it obviously has not.  The orders - the draft notice of appeal - the orders I am asking for is:

The immediate changeover of custody -

but, unfortunately, I only have one son to change over, who is now 12 years of age.  He was eight years of age at the time my wife left.  My wife lied about the mother-in-law - which I have filed the documents, if you have read them.  She stated - and, incredibly, Judge Gun gave custody to my mother-in-law, who lives 100 kilometres north of Adelaide - to come down Monday to Friday and look after my children, and that did not continue. 

The day after the trial, the wife stated that she finished work at 4 o’clock.  The very first say I brought my kids a drink after school, it was just before 4 o’clock, my wife was at - car was at the Modbury Hospital - after she filed that letter - so I waited to see if she drove out.  She drove out at 5 minutes to 5 from that hospital, so she is lying on that document as well.  So, every court document, my wife is lying on, and you are trying to convince me that I do not have a right to an appeal.          I have got here I am asking:

the immediate changeover of custody to -

myself, as previous - - -

McHUGH J:   Mr C, one thing you may not appreciate, this Court does not sit here as a court of appeal.  Its function is to deal with questions of public interest that affect the nation as a whole.

MR C:   That is right.  Well, I had hoped you had read the document and would have granted it in five minutes because, like, I did not want to have to run two trials.  Like, I did not want a trial here to go to an appeal trial, I just preferred that you would have granted me, on the documentation, unless you think I am lying and - which I am not and - - -

McHUGH J:   It has got nothing to do with that.  This Court does not sit here to assess the credibility of witnesses.  We did not see Ms Prowse.  We did not see your wife.  We did not have the advantage of having the children interviewed by one of us, and we never do.  We do not decide questions like that, we decide important questions of law and - - -

MR C:   Well, I have the sections of law - - -

McHUGH J:   - - - there is no important question of law here that I can see at the moment, Mr C, and you have got to persuade us that there is.

MR C:   Well, there is.  I have the authorities and the sections of law to convince you, and my wife obviously is not willing to come to this Court, and my daughter I mentioned, unfortunately, that she would not be game to come to this Court because of the statements they made to Helen Prowse. And the obvious is my wife could not face the High Court because I can annihilate every statement she made in relation to my lifestyle.  I think she stated my children’s relationship deteriorated over a 10‑year period.  Eight years ago I lost my employment because of the wife.  I have my family album here I brought for holidays, the year before my wife left.  They are all evidence that substantiate the wife is lying, which gives me the right to take it to a judge.  I do not know whether it is one Judge or three Judges in the High Court, but I definitely have grounds to appeal.

BRENNAN CJ:   Mr C, that is the problem.  You see, what you are saying is - - -

MR C:   Well, I have the authorities and the law, and I know - I have read High Court authorities and they state they can only go on the authorities of previous cases and the sections of law that support a person’s claim.  Now, I have both of those things in my favour, so, as I continue, I will read out the authorities and the sections of law, and then you can make a judgment that should be appropriate for the High Court of Australia in relation to the care of a now 12-year-old son who has - my wife knocks off at 5 o’clock, he gets out of school at 3 o’clock, he is running the streets from 3 to 5.  He does not have a father or parental control and, so, at any rate, I will continue.

So, the orders I am asking - as an alternative to sharing of custody on a bi‑annual basis re myself, father’s rights, equally regards the upbringing in relationship with my children.  What this Court is saying - that what my wife is doing is cutting me off completely - and her mother-in-law - from seeing my children ever in relation to the amazing circumstances of why I had the care of the children at the time, this Court cannot justifiably say that I never see my children.  I was absolutely the perfect father.  I had sporting - a backyard with swimming pools, basketballs, table tennis ‑ against Judge Prowse as stating - and Judge Gun stated he believed my wife, with the history of my employment because of my wife, and my wife’s history before the marriage, which would shock Australia, in relation to my employment situation, where the companies would collapse if those documents were released to the public because they were dairy industry.

I am asking that, even as a worse situation, I am entitled to equal share of custody of my children, which is supported by Judge Nygh who says fathers have a right to children in today’s modern age.  If this Court is not - if the appeal court is not willing to give me my son now - my other daughter is now 18 years old - give my son back to me completely, I obviously perceive as the best interests for the beneficial future of my son that he is in my care in regard to the mother and, further, if required, I wish access - only if required - if I do not get custody, I wish access of my son during periods of school holidays as requested to the Full Court, but not addressed.  That was also not addressed by the Full Court.

All previous orders custody be dismissed.  I believe the judgment suggests that the minor courts could not even interpret that I was the father in charge of the children in a - like in a mother situation because of the wife and, if you read the documentation, you think I could have worked in the Public Service in regard to that documentation, in the same building, you would go down as amazing judges.  I am seeking that the costs be met by the fully‑employed runaway wife with the children .  Opportunity is not entitlement for the reasons the husband is not employed re the wife and the applicant’s current pension status - or due to the former paragraph, the parties pay themself.  My wife is not willing to be in this Court.

I have a summary of argument.  That was my notice of appeal to - the application to appeal special leave is on page - amended application is at pages 49 to 54 of the application books, which is pretty well the same basis as the notice of appeal:

Judge Gun failed to properly assess the obvious regarding the case by trial documentation -

In other words, he could not interpret the truth.  A wife with the history that my wife had in relation to the lifestyle that I had with my children, in regard to that, I believe one thing that will substantiate that - my wife stated that all accounts were in my name - Bankcard, Myers, John Martin’s - my wife walked into the court and stated that none of the accounts were hers, they all related to car repairs, clothes, Christmas presents.  The moment my wife established - was willing to walk into a court and lie in relation to those things - because, unfortunately, after 23 years I assumed that - I did not assume what was about to occur - my wife lied in relation to that, and Judge Gun at least was correct in that judgement, that he ordered equal payment of those things.

But he was obviously -he could not interpret - he claimed my - he believed the wife in relation to the statements she made in regard to my lifestyle with my children, which was absolutely amazing.  Judge Gun was influenced by Prowse, which I already mentioned.  Both custody children - and the wife lied blatantly in regard myself, appellant father.  The summary of argument, which I will discuss further on, is virtually proven, when I state what the lifestyle was like, or it will be in the High Court - is self‑explanatory re previous High Court file documents.

Judge Gun assumes that an eight-year-old boy and a 14-year-old girl ‑ children - decide their future in contrast to the honourable trial judgments of myself in regard to the disgusting work situations which forced me out of the work force because of my wife, which would shock Australia.  He offered my children to my wife and my mother-in-law, who lives in the country, which they continued after - - -

McHUGH J:   You made allegations about your wife before Judge Gun, she denied it, on oath - --

MR C:   Yes, that is right, she is a liar.  Obviously the reasons my employment - - -

McHUGH J:   - - - and the judge accepted her as a witness of truth.

MR C:   If I had to leave jobs in relation to my wife’s massive sexual appetite, which would shock Australia in regard to the sake of my children, and was dismissed from jobs because I was forced out of canteens in regard to eating, Judge Gun was incorrect in those circumstances; that he could actually believe those circumstances.  There is no question that Judge Gun was at fault.  He could not have made those judgments if he was honourable.  I have got here that Judge Gun assumes an eight-year-old - he assumes that my son can look after himself - and a 14-year-old girl.  Imagine a 14-year-old girl with that documentation being brought up by a mother with that background, and the documents which would shock - decide their future - in contrast to myself, the five years full-time care giver against the atrocious circumstances re the wife and, again, anticipated lifestyle of the wife.  The wife would have a walk-up situation - walk‑in‑front‑door situation, regardless of whether my children was in the house or not.

McHUGH J:   But did you not tell the judge that you were devastated by the wife and children leaving you and that, as far as you were concerned, the marriage of 22 years had been perfect.

MR C:   My marriage was perfect.  Matter of fact, I had to put those things out of my mind in - - -

McHUGH J:   Notwithstanding these allegations you then later make against your wife?

MR C:   That is right.  Those situations I had to put aside for the sake of my children, and I had to come home each night from work in regard to those situations for the sake and benefit of my children, then have to have my children stripped from me by a runaway wife who wants to go round the traps again, okay.  So, I stated my lifestyle was perfect in - - -

McHUGH J:   But do you see, Mr C, how difficult a judge might find it to accept this claim.  On the one hand you say your marriage was perfect, you were devastated by your wife leaving and, on the other hand - - -

MR C:   I am sorry, I did not say I was - you are confused there.  I did not say I was devastated by my wife leaving, I was devastated in regard to my children.  I do not think you will find anywhere where I stated I was devastated about my wife leaving and, as far as I am concerned, the High Court can make a judgment in relation to myself - custody - and I would not lose one night’s sleep over the wife.  So, I do not know where you - I have not - have you got the page that was on?  I do not believe I ever made that statement.

McHUGH J:   Well, I was reading from what the judge said, at page 6 of the appeal book, where he said:

The husband was devastated by the wife and the children leaving the home.

MR C:   Well, I made - that is his statement, not mine.

BRENNAN CJ:   Mr C, you pointed out correctly that you have two applications; one in relation to custody, one in relation to property.  Now, you have 20 minutes in relation to each.  You have more than taken 20 minutes so far.  Do you want to go on to the property aspect now?

MR C:   No, I would like to ask the Court to give me an extension of time because of the importance - - -

BRENNAN CJ:   No, there will be no extension of time.  You have got 40 minutes all together.  How you allocate it is a matter for you.

MR C:   This is a High Court, and I believe that the High Court is in a position to make the correct judgments and the truth in regard to all courts.  I believe that I have not - I need to continue - if you wish to stop me straight away, I need to continue with the authorities to confirm that I was correct in regard to the authorities and the law in relation to changing of custody.

BRENNAN CJ:   Mr C, how you allocate your 40 minutes is a matter for you - - -

MR C:   And then, in relation to my - - -

BRENNAN CJ:   - - - and there will be no extension of time.  So, you proceed however you see fit.

MR C:   Well, I would like to ask the three court Judges, not just yourself, to make that judgment, because in regard to my property, myself and my children were - lost 22,500 in regard - a document - a valuer’s valuation document in regard to the Family Court judgment.  These things need to be addressed, so I would like to ask the - - -

GUMMOW J:   You can assume that what was just said to you was said to you with concurrence of all of us.

MR C:   So, what you are saying to me is you, as a High Court, do not believe in bringing justice to the Court because of - - -

GUMMOW J:   No, we do not, no.

McHUGH J:   We do not say any such thing, Mr C.

MR C:   - - - because of a matter of five, or 10, or 15, 20 minutes because of an application.

BRENNAN CJ:   You are taking more of your time, Mr C.

MR C:   Okay.  I will refer to the summary of argument in relation to custody, I will continue with custody.  I have - the first document, if you want to go along with me, I have mentioned page 65 of the application books, section 64:

the court must regard the welfare of the child as the paramount consideration;

My son is living in a house on his own.  The children were living in a house with a 16-year-old boy in care of the children while the wife was at work. Section (b):

the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers -

but in this case it is not appropriate because the child has no care:

the court shall take the following matters into account:

(i)   the nature of the relationship of the child with each of the parents of the child and with other persons;

(ii)  the effect on the child of any separation from:

(A) either parent of the child -

I brought my son up since he - my wife was at work - since he was one until eight years of age he was in my care, okay, and he had no right to be taken from me.  The next page:

(B) any child, or other person, with whom the child has been living;

(iii) the desirability of, and the effect of, any change in existing arrangements for the care of the child;

(iv)  the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child;

(v)   the capacity of each parent, or of any other person, to provide adequately for the needs of the child, including the emotional and intellectual needs of the child;

(va)  the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child;

(vi)  any other fact or circumstances (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and

(c) subject to paragraphs (a), (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including any order until further order.

If this High Court thinks that a 12-year-old boy can live in a house on his own, they need to take a look at themselves.

McHUGH J:   Well, I appreciate the things that you are putting, but the matters that - - -

MR C:   Sorry, if you want to cut my time, I will ask that you wait until I finish because you are wasting my time if you are not willing to give me an extension.

McHUGH J:   No, part of the process here is that you answer questions the Judges put to you so that we can - - -

MR C:   Well, it does the clock stop what I am - - -

McHUGH J:   - - - better understand the argument that you are putting.  But how do you deal with material that was before the judge in the form of the report from Ms Prowse in which your daughter, for example, described an incident in which she said that you objected to the girls going out and that, on one occasion, you were yelling and screaming and hitting Jane and that you -  --

MR C:   My wife - that is a lie.  I have asked the court to - that my wife lied on every court document, and my children lied on every court document in relation to the discussions with Prowse, and I have a lifestyle here to establish that is incorrect, okay.  If you are willing to assume that, you - I played football for 20 years, I never hit a person in 20 years.  I am as placid as anything.  The only time I ever got my back up is appearing in a court to fight for my children, which, at 50 years of age - and I have never ever got angry or had a temper.

McHUGH J:   Well, all I am putting to you is the problem the judge had.  He has got this evidence against your evidence and you, yourself, would have to concede, at the very least, you were very foolish to have written the note that you did in which you said that there could be a massacre on Christmas Day if you are not there with the kids, that you threatened to burn down the house.

MR C:   I wrote the note - that is the only thing in favour of my wife.  I wrote a note asking her to bring - I was out the front of Myers and I was as placid as hell, I just wrote a note and asked her - but - and now I will refer to that.  I watched a movie, Sleepless in Seattle, and the kid was going - the father had the child and he was going interstate looking for a mother for the child, and he got off the plane - they brought him back off the plane - and the actor, which was a famous actor - Tom Hanks - stated, “You do that again and I will kill you,” right.  Now, there was no intent - like, you would assume he had no intent of ever killing his child because the child was coming back.  He was just giving a hard lecture to him.  I also made the statement that my father when - and my brother and myself lived at home, we had a perfect family lifestyle, the same as I had previously, which I had to make do because of the wife’s situation.

McHUGH J:   Well, I understand that is your explanation of it, but the Judge took the other view.

MR C:   No, no, Judge Gun supported - in those things, you will find that Judge Gun supported that.  He only referred to the Prowse report.  He knew I had no intention of doing those things, and he accepted my - - -

McHUGH J:   Well, the judge said he accepted that you never really intended to carry out the threat.

MR C:   That is right, I just - and it was a note to my wife.  Now, if I am - my wife - the day my wife presented that document to the court she died.  I had to then get equal rights to my children.  I had to present all these work situations, which would shock Australia and, like I said to you, you would not give your children to - in a house on their own - to a person in the work situations that are documented here that Judge Gun failed to address and, so, therefore you have no right to say that I cannot have equal rights of my children.

The note, I established, was an error and I - it was prior to the Family Court.  I expected my wife just to throw it in the bin and come back home.  I had not anticipated she was definitely leaving, which I stated at the Judge Gun trial.  That is the only area I have to establish grounds against to get equal custody.  Those statements were not - I think Gun stated I was in a state of shock.  I was not, I was quietly out the front of Myers shopping centre speaking to Jane to try and find out where my children had gone.  So, I said, “Give the note to your mother.”  A policeman handed me back the note and - because security said to me, “Come back after work,” and I said to the police officer, “No, just give my wife the note and see what happens.”  It was a ploy to get my wife to return.

What you are saying is I am a murderer and my wife is not - has not got documentation - sexually - that cost me my employment for eight years that would shock Australia, that you would not - could not possibly give your children to and you are saying that I am in that situation and my wife is bloody innocent.

McHUGH J:   Mr C, I am not saying anything, and it is not this Court that has taken your children away from you, and it is not this Court that orders it.  Orders have been made in the courts below and you have to persuade - - -

MR C:   Yes, orders which are - - -

McHUGH J:   You have persuade us that there is some question of law of importance which transcends the importance of your case.

MR C:   Right.  Well, I have a situation where a 12-year-old boy is in a house - - -

McHUGH J:   And so far, Mr C, you have not addressed a single argument which suggests that there is a special leave point in the case.

MR C:   Well, Judge Gun - I will now to go the section 64 against - for the wife.  Judge Gun stated section 64 is the reason he took my children from me.  Section 64(1)(a) - non-care of the child, which should be now in a total reversal of weight to the father; (b) by documentation of care, no issue of weight because total reversal of weight to previous care giver, the father; section (bb)(i) relationship with the son, and other children, immediately prior to the wife’s departure was superb, and never anything else.  I had to cover for my wife’s - in my employment situation to live a normal life, okay, without having my children taken from me. 

Section (ii)(A), (A) is not relevant regards (A); (B) is the first adult child left home - my first adult child left home and is living with someone in a situation which is also unacceptable, surely, to the Family Court and this High Court of Australia.  My wife is living with someone - my eldest daughter is living with someone in - and my wife is the person who had care of that child at the time.  Would you let your - my wife - if that person left my daughter, or if anything was going on in that house, you would not have a clue what was going on.  I buy the sporting - I buy the Truth for the racing page, and the back pages are absolutely disgusting with pimps in Victoria and South Australia.  Do you know what is happening in that house with my 18 or 19-year-old daughter.  You do not, right.  My wife just allowed that.

And if that person was to leave my daughter, and she had to marry again, would you marry my daughter if she had been living with someone?  No, you would not.  So, she has virtually destroyed her own daughter’s life because she did not tell her that it was a situation not appropriate to the - and this is whilst she has care of other junior children supported by the Family Court.  The father’s living situation, environment and lifestyle as previous circumstances were totally favourable.  The second section is not relevant re care.  This section totally supports husband/father re the summary of argument and attitude at trial to the child.

When asked the father’s - my barrister again if the father was to win custody of the children - in transcript - wife stated, “I will just have to accept that.”  My wife is back in the mode before I married her, where she had a history which would shock Australia, and she comes out with statements and lies on every court document, and you tell me I do not have a right to a High Court appeal and youse think Gun was - you doubt Gun against myself - his judgment?

Judge Gun stated to her, “What did you just say?” and she stated - I have the two pages of that custody that documented further on.  My capacity ‑ in section 64 - my capacity to.....is by way of property and anticipated damages will be equal to the wife’s financially, with the same standards and quality against the wife as previous - so, I have equal rights to my children.  Do not tell me I can lose my children forever in regard to those circumstances of the wife - in favour of the wife. 

This section refers to the wife’s atrocious anticipated lifestyle as prior to the marriage and the huge effect on my son psychologically, same as my forced destruction of my working life re the wife, regardless of my qualifications and high quality work standards.  I believe the wife’s working longevity is in question also, and even in home duties in insufficient - she is insufficient documentation.  This section has been addressed extensively - summary of argument in favour of the proper parental upbringing by the father -lifestyle qualities of life, standards, et cetera.

The next page is the page in regard to McGinn - the transcript.  You have probably gone over to the next page, page 90 of the transcript:

McGINN:   Yes.  Now, Mrs C, just a final series of questions.  If Mr C were to be awarded custody of the children, to you think that your relationship with the children would be jeopardised if that were to occur?

“No,” she says:

You accept that if Mr C was granted custody of the children that he would be prepared to grant you access to them?

I wouldn’t have a choice, would I? 

So, my wife is - could-not-care-less situation in regard to the children.  In other words, she was not - she could not care less whether she lost the children or not, okay, and, if that is an attitude for a wife to have - bring up my children, I am amazed.  His Honour says:

I do not understand your answer.

Well, sorry, yes, I would accept that he would give me access, sorry .

The further affidavit I have - the next one - page 65 of the application books at five states,

Just prior to Christmas of 1992 I politely in normal conversation asked my wife if she had saved any money so we could all go on our normal, usual Xmas holiday vacation. 

(2)  Her reaction whilst standing in doorway kitchen to lounge was to grab a plastic sauce container from pantry and hurl it over my head.  The referred container lid came off causing tomato sauce to splatter all over the lounge room walls, light fittings..... 

(3)  This action occurred in the presence of all our three children, who looked silently and in amazement at their mother -

because we did not have that sort of living relationship.

My reaction was the same. 

There was not a word spoken at the time or after, my normal placid nature had myself put the incident aside, without discussion. 

(4)  The next day my wife cleaned up the mess. 

(5)  Although I had not addressed this situation to the court previously, I see it as a further equaliser to custody rights.

The only reason of equaliser I need is against the note.  The areas of Prowse can be totally dismissed in regard to my lifestyle because of her gullibility.

The next affidavit is the one Judge Gun failed to address, and the affidavit, if you wanted me to read it, if it is an open Court, I will read it out and you can - just to establish why the wife should not have had the children.

GUMMOW J:   Whereabouts is it in the papers?

MR C:   It is page - it is following that last affidavit - further affidavit in regard to the -  --

GUMMOW J:   In the application book?

McHUGH J:   No, no, in this bundle.

MR C:   No, in the pages I filed two days ago:

I relinquished and was dismissed from future full time work directly as a result of harassment and humiliation - - -

McHUGH J:   I am sorry, I still have not found it, Mr C.  What page is it on?

MR C:   Page 1 of my affidavit of DWC, dated - filed 22.9.94, which Judge Gun dismissed.  In other words, perhaps you thought I sat at home and dreamed these things up.

McHUGH J:   Is it behind the - - -

MR C:   It is following the affidavit I just read out in regard to the wife.

McHUGH J:   And the transcript?

MR C:   Yes, the transcript is the page before that - the two pages of transcript.  This High Court cannot possibly support the lower courts.

GUMMOW J:   Yes.

MR C:   Page 1 of my application, which Judge Gun put a line through.  He assumes that the circumstances surrounding my work force - that a mother should still have care of the upbringing of the children.  Just imagine my daughter being brought up by the wife in regard to those circumstances.  Page 1.  It follows immediately after the affidavit I just read out.  If you are turning your pages over, it is just a matter of going to the next page:

I relinquished and was dismissed from future full time work directly as a result of harassment and humiliation suffered by me arising from the wife’s pre-marriage behaviour.  In relation to - - -

BRENNAN CJ:   Now, was this affidavit filed in the courts below?

MR C:   This was a trial affidavit that Judge Gun dismissed.  I have an authority that states I have a right to - - -

BRENNAN CJ:   Was it filed before Judge Gun?

MR C:   Yes, to the trial - in the actual trial documentation, which he failed to address.  I have an authority that states I have a right to a High Court appeal if, in regard to its - I will get to it.  It is either Lovell v Lovell, where if a document is not addressed - he failed to address a document - those authorities give me the right to take it straight to the High Court as an appeal.

McHUGH J:   Now, all Lovell v Lovell does - - -

MR C:   Okay, it is not Lovell v Lovell, but I will find the right one if we continue on.  Would you like me to read it out to the Court, so they can establish whether - - -

BRENNAN CJ:   Well, you have got three minutes left, by the looks of it, so that is the extent of your time.

MR C:   Yes.

I relinquished and was dismissed from future full time work directly as a result of harassment and humiliation suffered by me arising from the wife’s pre-marriage behaviour.  In relation to degradation and humiliation in the work force, I believe they need to be described in full in regard to custody of both children, in particular the 15 year old daughter.

1st instant action by a co-employee of the company who described an oral sexual implication or deep throat (even worse) at a works Xmas Dinner prior to meal.  Wife departed to toilet and after a long period of time returned, saying she was not feeling well and wanted to go home.  At the time I was paymaster at the wool store section of a Primary Industries company.  I was later put under pressure by the same employee at a Head Office encounter.

I was at that 2nd encounter, the paymaster at the company’s Dairy Product section, a much higher post.

I did not totally relate to this situation until after leaving the company for personal betterment and financial reasons, after 16 years.

The 2nd instant occurred after I was appointed to a position with a Public Service department and was placed through work activities directly with the wife’s former companion.  The oral sex implication statement came from the employee seated next to this person, when the wife’s former associate nodded his head to confirm.  I voluntarily left this position in the best interests of my children and to say my family.

And you are telling me I do not have a right to a High Court appeal:

In relation to phone calls there was a parallel with a girls’ name and the above report and I tried to avoid Kylie’s -

because the person’s name was “Clark” and Kylie’s best friend they gave her was somebody named “Clark.”

BRENNAN CJ:   Now, your time has expired, Mr C.

MR C:   Well, if you have read the documentation and you can justify not having those children taken from the mother, that is amazing.  And in regard to the property, I believe if you can not give me 20 minutes to fight the property, in which my children and myself lost 22,500 against the incompetence of Judge Murray, which the documents - I have supporting documents, I have evidence of a valuation -  --

BRENNAN CJ:   Your time has expired.  Please sit down.

MR C:   In regard to - I will ask, actually, that I could have an extension of time because of the importance - and I believe the High Court is a High Court and cannot make an incorrect decision in favour of those decisions.

BRENNAN CJ:   No extension of time will be granted, Mr C.

MR C:   So, I assume you will pay me the 22,500 the Family Court took from me and my children.

BRENNAN CJ:   Please sit down, Mr C.  Please sit down.

MR C:   Well, I asked you to make a judgment in relation to your position in the High Court of Australia - - -

BRENNAN CJ:   Please sit down.

MR C:    - - - in relation to my children and my property.

BRENNAN CJ:   The applicant seeks special leave to appeal because, in his submissions, the courts below have failed to understand the true history of family relationships and have failed to appreciate the real interests of the children whose custody was in issue, especially his son.  These are not issues which this Court can address anew on an appeal.  Special leave must be refused.

The objections which the applicant has raised against the orders made in the courts below with respect to property raise no question for consideration by this Court.  Accordingly, special leave will be refused in that matter also.

MR C:   I ask you if you are willing to face the Press on this situation on both documents?  The High Court just lost its standards of quality of life because of 20 minutes.  God help my children, OK, because of what the Judges - who is going to look after my son tonight during the school holidays?  Are you?  Are you going home?  Would you give your children to that situation?

BRENNAN CJ:   Please leave the table, Mr C.

MR C:   You had to read that document.  You had to give me the orders automatically.

BRENNAN CJ:   Please leave the table.

MR C:   Can I ask is there an appeal to this judgment?  Do I have an appeal process to this judgment?

BRENNAN CJ:   No.

MR C:   Well, I ask you will be dismissed.  I will go to the Attorney-General, the High Court of Australia.

BRENNAN CJ:   Call the next application.

AT 12.26 PM THE MATTER WAS CONCLUDED