Field v Human Rights and Equal Opportunity Commission - [1999] FCA 1711

FEDERAL COURT OF AUSTRALIA
Field v Human Rights & Equal Opportunity Commission [1999] FCA 1711
ADMINISTRATIVE LAW – review of decision of the Human Rights and Equal Opportunity Commission (the Commission) – duty of the Commission to enquire into a complaint – role of the Court in reviewing a decision not to enquire – whether the Commission failed to take into account relevant facts
HUMAN RIGHTS – relevance of international human rights law – whether rights contained in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child are directly enforceable in Australian courts – whether there is a duty of the Commonwealth to investigate breaches of international human rights treaties
PRACTICE AND PROCEDURE – unrepresented litigant – role of court to assist litigant – application to reopen case to adduce further evidence - joinder of parties – principles to be applied in exercising discretion – whether joinder would cause undue delay – whether matter already significantly progressed - whether the claim against the proposed party is futile because it fails to disclose a cause of action – whether claim against the proposed party lacks jurisdiction
Family Law Act 1975 (Cth) s 60H(1)
Human Rights & Equal Opportunity Commission Act 1986 (Cth) s 4, 5(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11
International Covenant on Civil and Political Rights (United Nations, 1966: ATS 1980 No 3)
Convention on the Rights of the Child (United Nations, 1989: ATS 1991 No 4)
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment, (United Nations 1984: ATS 1989 No 21) Article 22.
The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 cited
Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and “X” (Federal Court of Australia, unreported, Full Court, 13 January 1998) cited
Neil v Nott (1994) 121 ALR 148 at 150 cited
Rajski v Scitec Corporation Pty Ltd, (Butterworths unreported judgments, 16 June 1986, NSW CA at 27) cited
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445-6, 447-8 followed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 followed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 cited
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 cited
Minister for Immigration & Multicultural Affairs v Moges Eshetu (1999) 162 ALR 577 at 607 cited
Dietrich v The Queen (1992) 177 CLR 292 at 305 considered
Victoria v The Commonwealth (1996) 187 CLR 416 at 480-482 cited
Sinanovic v The Queen (1998) 154 ALR 702 at 707 cited
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 286-7, 298, 304, 315 considered
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 294 cited
Tytel Pty Ltd & Ors v ATC (1988) ATPR ¶ 40-847 at 49,118 cited
MERET FIELD v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION AND COMMONWEALTH OF AUSTRALIA
VG 10 OF 1998
NORTH J
15 DECEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 10 OF 1998

BETWEEN:

MERET FIELD
Applicant

AND:

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

15 DECEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application is dismissed.
2.The motion seeking joinder of the State of Victoria as a party to this proceeding, notice of which was filed by the applicant on 5 June 1998, is dismissed.
3.The question of costs is adjourned to a date to be fixed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 10 OF 1998

BETWEEN:

MERET FIELD
Applicant

AND:

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:

NORTH J

DATE:

15 DECEMBER 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Mrs Meret Field, has a granddaughter, Margaret, who was born on 26 June 1990. Margaret is the daughter of Mrs Isabel Nelson, Mrs Field’s daughter. Mrs Nelson is married to Michael Nelson. There was extensive litigation between Michael and Isabel Nelson in the Family Court of Australia over access to and custody of Margaret. Mrs Field intervened in those proceedings. In the course of the proceedings the Family Court ordered the apprehension of Margaret and the arrest of Mrs Nelson. Mrs Field made a complaint to the first respondent, the Human Rights and Equal Opportunity Commission (the Commission) concerning the apprehension and arrest. The Commission decided not to enquire into the apprehension and arrest and Mrs Field has brought the present application to review that decision of the Commission. She also seeks orders against the second respondent, the Commonwealth of Australia, for its alleged failure to provide protection to Margaret.

BACKGROUND FACTS

Although the facts surrounding this application have been traversed now by a number of courts it is not possible to understand the application without revisiting that background. The factual background was described in the judgment of the Full Court of the Family Court of Australia given on 24 September 1997 which dealt with appeals concerning questions of access to and custody of Margaret. I base the following outline on the description given in that judgment.
Mrs Nelson was born in 1964 and Mr Nelson was born in 1966. They started to live together in 1988. At this time Mrs Nelson was working as a prostitute and Mr Nelson as a computer analyst/programmer. Margaret was their only child. Mr and Mrs Nelson married on 26 June 1991. Mrs Nelson continued to work as a prostitute and in 1991 also opened a toy shop. After a period of unemployment Mr Nelson began working on a casual basis in a factory.
Mr Nelson cared for Margaret while Mrs Nelson was working and initially he regarded her as a doting and loving parent. However, from December 1993 she began to exhibit peculiar drug-induced behaviour including paranoia. In January 1994 she took Margaret to a Melbourne hospital and contacted police because of her expressed concerns that the babysitter had used Margaret to re-enact a rape scene or make pornographic movies. No abuse was substantiated. Mrs Nelson then began taking the child to see a number of doctors for medical examinations, claiming that Margaret had been sexually abused.
Mr and Mrs Nelson separated on or about 10 April 1994. On 15 April 1994 Mr Nelson refused to sign documents prepared by Mrs Nelson granting her sole custody of Margaret. For several days Mrs Nelson and Mrs Field refused to allow Mr Nelson to see Margaret or inform him of her whereabouts. On 26 and 27 April 1994 the Victorian Department of Health and Community Services (HACS) was notified about Mrs Nelson’s lifestyle involving drugs, violence and prostitution, and Mrs Field informed a protection worker that Mr Nelson was not Margaret’s biological father and that Mrs Nelson was sexually abused as a child. On 28 April 1994 police contacted HACS because Mr and Mrs Nelson told them that Mrs Field was a cult member and had attempted to kidnap Margaret. During May 1994 Mrs Field informed HACS and two Victorian hospitals of her suspicion that Margaret was being sexually abused and at risk because Mrs Nelson was working as a prostitute and using drugs.
On 16 May 1994 Mrs Nelson took Margaret to Queensland and rang Mr Nelson, demanding that he write a letter detailing his sexual abuse of Margaret. Mrs Nelson informed the Queensland Family Services Department and the Queensland police that Mr Nelson had sexually abused Margaret. On 17 May 1994 a paediatrician examined Margaret and reported to police that there was no evidence of sexual abuse. On 20 May 1994 the police and the Family Services Department interviewed Mr Nelson and subsequently advised that no action would be taken against him. On 27 May 1994 Mrs Nelson rang HACS informing them that Mr Nelson had frequently raped Margaret.
By 14 June 1994 Mrs Nelson returned to Melbourne with Margaret. On 22 and 29 June 1994 Mrs Nelson took Margaret to two Melbourne hospitals requesting a medical examination of Margaret for sexual abuse or sexually transmitted diseases. A doctor found no evidence of either but was concerned about Margaret’s frequent medical examinations and relocations. She recommended that HACS investigate the case and that Mrs Nelson have a psychiatric assessment as she suspected that Mrs Nelson had Munchausen’s Syndrome by Proxy. On 6 July 1994 Mrs Nelson again contacted police alleging that Mr Nelson had sexually abused Margaret.
On 10 July 1994 Mrs Nelson and Mrs Field took Margaret to Tasmania, informing Mr Nelson that he would never see Margaret again. Mrs Nelson sought a further medical examination of Margaret by another doctor, a paediatrician in Hobart, for sexually transmitted diseases. That doctor found the child had no sexually transmitted disease and Mrs Nelson did not attend a follow-up appointment. The doctor suspected that Mrs Nelson suffered from Munchausen’s Syndrome by Proxy.
In late July Mrs Nelson returned with Margaret to Melbourne and resumed her work at a brothel. She took Margaret for further medical examinations to various doctors including a general practitioner, a paediatric surgeon, a Melbourne sexual assault centre and another doctor. On 10 August 1994 Mrs Field informed a welfare service of her suspicion that Margaret was being sexually abused. On 9 September 1994 Mrs Nelson gave HACS the same information. Consequently, HACS workers and police attended at a Melbourne hospital on 28 August and 19 September 1994 when Mrs Nelson took Margaret for further medical examinations. A further doctor refused to examine Margaret or accede to Mrs Nelson’s request for her to alter her reports. That doctor also described Mrs Nelson as suffering from Munchausen’s Syndrome by Proxy.
In breach of orders of the Family Court, which will be referred to later in these reasons, Mrs Nelson then removed Margaret to Queensland. On 21 October 1994 police refused HACS’ request to retain Margaret in custody until a pending Family Court proceeding was determined, as they considered that Margaret was not in immediate physical or emotional danger. On 27 October 1994 Mrs Nelson and Mrs Field took Margaret under a false name to yet another doctor for a medical examination. Mrs Nelson also took Margaret to the Northern Territory and in November they relocated to Canberra again in breach of orders of the Family Court. In Canberra, Mrs Nelson dyed Margaret’s hair and took other steps to avoid detection. She took Margaret again, under a false name, to another doctor, a paediatrician, who found that Margaret had abdominal pain, probably caused by constipation. Mrs Nelson also took Margaret to two other doctors for further medical examinations.
Since 7 May 1995, when police executed a Family Court warrant to deliver Margaret to Mr Nelson, Margaret has lived with him and his extended family in Melbourne. On 15 June 1995 HACS workers interviewed Margaret and reported that she was happy, seemed to enjoy living with Mr Nelson but became uncharacteristically introverted when they attempted to discuss medical examinations with her. Mrs Field regularly attended supervised access with Margaret. However, Mrs Nelson did not exercise access until late August 1995. Further incidents involving misconduct by Mrs Nelson in late 1995 and in 1996 in relation to gaining access to Margaret are chronicled in the decision of the Full Court of the Family Court. It is not necessary to set out the detail here.

HISTORY OF COURT PROCEEDINGS

There have been very many applications made to various courts concerning the custody and access battle over Margaret. Some of the proceedings relevant to the present application are as follows.

Family Court interlocutory proceedings and Children’s Court protection application

On 6 July 1994 Mr Nelson applied to the Family Court for orders granting him access to Margaret and restraining Mrs Nelson from removing Margaret from Victoria without prior notice to him.
At the first Family Court hearing on 31 August 1994 Ramsden JR made orders including:
“(3) That pending the said adjourned hearing or further order each of the Husband, Wife and (maternal grandmother) be and are hereby restrained both personally and by their respective servants and agents from removing or attempting to remove the child of the Marriage…from the Commonwealth of Australia and the State of Victoria…”
On 6 September 1994 Kay J made an order in the same terms, adjourned the hearing until 23 September 1994, and ordered that HACS intervene in the proceedings.
On 20 September 1994 HACS removed Margaret from Mrs Nelson and made an urgent protection application to the Children’s Court. On that application the court made an interim accommodation order, which provided that Margaret be released into Mrs Nelson’s care pending a hearing in the Children’s Court on 26 September 1994 upon Mrs Nelson undertaking to produce Margaret at that hearing. Mrs Nelson signed such undertaking which included conditions that Mrs Nelson accept visits and cooperate with HACS and notify it of any change of address at least twenty-four hours before such change.
On 23 September 1994 in the Family Court Graham J heard cross-applications for interim access and custody orders. He ordered that Mrs Nelson have custody of Margaret and Mr Nelson have supervised access each Saturday between 10:00 am and 6:00 pm. In response to the submission that Margaret was being subjected to excessive and unnecessary medical examinations, his Honour ordered “[t]hat until further order all parties be and are hereby restrained from taking the said child to any doctor, psychologist, psychiatrist or counsellor, unless to give effect to these orders” (the medical examination restriction order).
On 26 September 1994 the Children’s Court ordered, in the absence of Mr and Mrs Nelson, that the interim accommodation order remain in force until 14 March 1995 and released Margaret into Mrs Nelson’s care on similar conditions as stipulated in the previous order, but no undertaking was signed. On 12 October 1994 the Children’s Court issued a warrant authorising officers of the Victoria Police to take Margaret into safe custody and bring her before that Court because Margaret was not made available for contact on 24 September 1994.
On 24 October 1994, in the absence of Mrs Nelson, in the Family Court Treyvaud J adjourned the case and ordered, inter alia:
“(1) That a warrant issue pursuant to Section 64(9) of the Family Law Act 1975 authorising and directing…all Officers of the Australian Federal Police and…of all the States and Territories…to take possession of the child of the marriage…and to deliver the said child to the husband forthwith he being the person entitled to access of the said child pursuant to the order of the Honourable Justice Graham made on the 23rd day of September 1994.”
On 1 and 2 December 1994 in the Family Court Brown J heard an application by Mr Nelson for orders that a warrant issue for the arrest of Mrs Nelson on the ground that she had acted in breach of the orders made by Graham J on 23 September 1994. On 2 December 1994 Brown J ordered inter alia:
“(1) That a warrant issue authorising and directing…all members of the Australian Federal Police and…of all the States and Territories…to arrest (the wife) and to bring her before the Court…to show cause why she should not be adjudged guilty of contempt of court in that she is alleged to have failed to comply with orders made in the Family Court at Melbourne on 23 September 1994 requiring her to make the child…available for access and restraining her from taking the said child to any doctor…without further order of the Family Court.
(3) That the husband have access to the said child…from the time the warrant issued by the Honourable Justice Treyvaud on 24 October 1994 is executed until further order of the Family Court.”
As a result of the issue of a multitude of applications by Mrs Field during 1994, on 6 February 1995 Treyvaud J declared that:
“(1) …the proceedings instituted by the maternal grandmother…are vexatious.”
And ordered:
“(2) That the said (grandmother) not, without leave of this Court, institute any proceedings relating to either the child… or the husband, or the wife, or any appeal from any proceedings so initiated by leave, save that she be at liberty to appeal against this paragraph of this order without first obtaining leave.”
His Honour also gave leave to Mrs Field to appeal out of time against the medical examination restriction order made by Graham J on 23 September 1994.
As was related earlier in these reasons, on 7 May 1995 the Federal Police executed the warrants against Margaret and Mrs Nelson. They were taken into custody in Canberra and the police handed over Margaret to Mr Nelson.
On 16 May 1995 the Children’s Court made an interim accommodation order releasing Margaret into Mr Nelson’s care.

Family Court appeal against interlocutory orders

It is convenient at this point to refer to some related litigation. On 19 June 1995 the Full Court of the Family Court (Lindenmayer, Kay and Moss JJ) heard an application for dismissal for want of prosecution of three appeals instituted by Mrs Field. The appeals were against the medical examination restriction order, the orders made by Brown J on 2 December 1994 for the arrest of Mrs Nelson and the order made by Treyvaud J declaring Mrs Field a vexatious litigant. Mrs Field had failed to comply with directions for the filing of appeal books. The Full Court dismissed the first two appeals. In the third appeal the Full Court extended the time for the preparation and filing of appeal papers and ordered that in default of payment of costs ordered or compliance with the new timetable that appeal would stand dismissed. Mrs Field did not comply and the appeal stood dismissed. On 7 March 1996 the High Court (Toohey, McHugh and Kirby JJ) dismissed Mrs Field’s application for special leave to appeal against the decision of the Full Court of the Family Court.

Family Court - further interlocutory orders

I now return to the events leading up to the trial of the main proceedings in the Family Court. On 22 November 1995 Brown J ordered that Mr Nelson have custody of Margaret until further order, and that Mrs Nelson and Mrs Field have limited access supervised by officers of HACS. As the Children’s Court application was still on foot, s 60H of the Family Law Act 1975 (Cth) applied. This section prohibited the Family Court from making any order in relation to a child who was the subject of such Children’s Court proceedings unless the order was expressed to come into effect when the child ceased to be the subject of such proceedings. Appreciating this requirement, Brown J made these orders subject to HACS agreeing to withdraw the protection application in the Children’s Court within twenty-four hours. HACS withdrew the protection application thus concluding the Children’s Court proceedings.
On 19 March 1996 Kay J heard yet another interlocutory application. It is not necessary to set out the detail of it. But I note in passing that as the parties had been so persistent in bringing interlocutory applications his Honour ordered:
“That save with the leave of a Judge first had and obtained, all parties to these proceedings are prohibited from instituting any further proceedings other than an application for leave or an appeal against this order prior to the commencement of the proceedings before Brown J.”
Family Court trial
The trial of the cross-applications for access and custody was conducted by Brown J on 18, 19, 22, 23, 24, 26, 29, 30 April, 2 and 3 May, 3 June, 5 September, 7 and 8 October 1996. On 8 November 1996 Brown J gave judgment and made orders including the following:
“(1)That all extant orders relating to issues of guardianship and custody of and access to the child of the marriage MARGARET ISOBEL NELSON born 26 June 1990 be and are hereby discharged.
(2) That the said child live with the husband.
(3)That the husband have sole parental responsibility for the long term and day to day care, welfare and development of the said child.
(4)That save by order of this Court the wife have no contact whatsoever with the said child.
(5)That save by order of this Court the grandmother have no contact whatsoever with the said child.
(6)That I declare that I am satisfied that proceedings instituted by the wife are vexatious.
IT IS DIRECTED
(7)That the wife not, without leave of this Court, institute any proceedings relating to:
(a)the said child MARGARET ISOBEL NELSON; or
(b)the husband; or
(c)the grandmother; or
(d)any person called to give evidence in the proceedings heard in this Court on 18, 19, 22, 23, 24, 26, 29 and 30 April, 2 and 3 May, 3 June, 5 September, 7 and 8 October;
for a period of two years, save that she be at liberty to appeal against orders made this day, including this paragraph.
(8)That the Registrar of the Family Court of Australia at Melbourne send to the Attorney-General of the Commonwealth of Australia a copy of:
(a)the transcript of evidence given by MERET JOY FIELD on 1 and 2 December, 1994;
(b)the reasons for judgment herein published this day.”

Her Honour published comprehensive reasons occupying 68 pages for making these orders. Mrs Nelson and Mrs Field appealed against the orders.

Family Court appeal and High Court special leave application

On 24 September 1997 the Full Court of the Family Court (Fogarty, Lindenmayer and Finn JJ) dismissed the appeals brought by Mrs Field and Mrs Nelson: In the Matter of N and F and N and Department of Human Services (unreported, Full Court of the Family Court of Australia, 24 September 1997). As to Mrs Field’s grounds of appeal the Full Court said at p 20 of the judgment:
“The grandmother’s notice of appeal contained 142 grounds of appeal and the wife’s notice of appeal raised 11 grounds. Many of the grounds of the grandmother were repetitious, and both raised irrelevant matters or asserted matters which could not constitute errors of law or fact in an appeal such as this. Although we have considered all of the grounds of appeal, we propose to deal only with those grounds which we consider have any possible legitimate basis.”
The Full Court upheld the findings of Brown J as to Mrs Field’s credit which it outlined [at p 22-3] as follows:
“Brown J accepted Dr I’s diagnosis of “the grandmother as suffering from a delusional disorder which amounted to a psychotic condition” (Appeal Books vol.1 p.80). She found that this diagnosis was “substantially corroborated by Dr. H” (Appeal Books vol.1 p.81) who considered that the grandmother “fits the criteria for schizotypal personality”, having: (Appeal Books vol.1 p.77)
“strong, firm and idiosyncratic ideas, abrasive relationships with others and coming close to the edge of reality in (her) thinking and dealing. He said that the grandmother was unlikely to be persuaded by reason or the affectionate demands of a relationship and could go her own way regardless of reality. He described her fixed ideas as “not quite delusional, but not realistic either”.”
Brown J considered that the grandmother was obsessed by this case and that she could not rely on her account of past events.”
Having dealt with the central issues in the appeal, the court said [at p 47]:
“We do not consider that there is any substance in any of the grandmother’s other grounds of appeal but for the sake of completeness we will refer to some of them.
We refuse the grandmother’s request for a certificate to the High Court (s.95(b) Family Law Act) or for any “compensation” to be paid to her and the wife by HACS, the husband or the Child Representative. We do not consider that Brown J breached any international conventions or treaties ratified by the Australian government. There is no evidence that the husband gained possession of [Margaret] by using “professional and criminal methods” or that there was any collusion between the husband, HACS and the Separate Representative. There was no need for Brown J to refer the case to the federal police to investigate for treason.”
On 11 September 1998 the High Court refused Mrs Field’s application for special leave to appeal the decision of the Full Court of the Family Court.

Family Court contempt proceedings

Brief reference should be made to proceedings for contempt brought by Mr Nelson against Mrs Nelson and Mrs Field. In separate reasons delivered on 8 November 1996 Brown J dismissed the charges against Mrs Field but convicted Mrs Nelson on three counts of contempt as follows:
“(a)contravening paragraph 3 of Ramsden JR’s orders made 31 August, 1994 and/or paragraph 2 of Kay J’s orders made 6 September 1994 by actively participating in or being knowingly concerned in the removal of the child from the state of Victoria;
(b)contravening paragraph 9 of Graham J’s orders made 23 September, 1994 by actively participating in or being knowingly concerned in taking the child to a medical practitioner on 27 October, 1994; and
(c)showing contempt for the authority of this Court by actively participating in or being knowingly concerned in taking the child into hiding on or about 19 October, 1994 and keeping her so in hiding from that date until the apprehension of the child on 7 May, 1995.”
Brown J found that the order made by Graham J on 23 September 1994 was made in breach of s 60H(1) of the Family Law Act 1975 (Cth). She found that s 60H(1) as applicable at the time provided as follows:
“A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be.”
After 20 September 1994 when the Children’s Court made the interim accommodation order, Margaret was in the custody of Mrs Nelson under a child welfare law within the terms of s 60H(1). The medical examination restriction order made by Graham J on 23 September 1994 was not made conditional upon Margaret ceasing to be in such custody. Consequently, the order was made in breach of the section. The question therefore arose whether the medical examination restriction order was a valid basis for a charge of contempt of court. Brown J concluded that the order was valid until set aside. As the order had not been set aside it was a proper basis for a charge of contempt. Her Honour sentenced Mrs Nelson to three months’ imprisonment suspended for two years on condition that Mrs Nelson abide by the orders made by the Court.

Family Court appeal in relation to contempt proceedings

An appeal was brought against this conviction. On appeal, the Full Court took a conservative approach and decided not to determine whether the medical examination restriction order was valid for the purposes of the contempt charge, but to treat the order as made in excess of jurisdiction. The Full Court, nevertheless, dismissed the appeal because it held that the sentence imposed by Brown J in respect of the three charges was so moderate that a reassessment of an appropriate sentence on the two remaining contempt charges could not have led to a lesser sentence. In relation to the validity of the orders made by Graham J the Full Court said:
“We agree with Brown J that Graham J’s order did breach s.60H(1) (now s.69ZK) of the Family Law Act. However, the status of an order made by the Family Court in excess of jurisdiction is still to some extent unresolved. This issue was recently discussed by this Court in Sakowsky v Sakowsky (13 August, 1997, not reported). In that case, a Family Court order declaring that the husband owed arrears of spousal maintenance was held to have been made without jurisdiction because s.30 of the Child Support (Registration and Collection) Act 1988 precluded the wife bringing proceedings for enforcement of the maintenance order which had been registered with the Child Support Agency. In relation to this issue, the Court stated as follows:
“In the context of this case we think it unnecessary to go into the interesting question whether an order of a superior court of record (as this Court is constituted by s.21(2) of the Act) made either beyond jurisdiction or beyond power is void, or merely voidable (so that it remains binding and enforceable until set aside by a subsequent order)...”
The Family Court is a “superior court of record”: s.21(2) Family Law Act. In her article Inferior and Superior Courts and Courts of Record, supra, Professor Campbell refers to several decisions of the High Court which have held that decisions of superior courts are valid and binding, even if they are made in excess of jurisdiction, unless and until they are set aside on appeal or by the court itself. But, Dawson J in DMW v CGW (1982) FLC 91-274; (1982) 151 CLR 491 considered that the Family Court should be distinguished from some other superior courts of record in the context of this issue. Dawson J stated (at FLC 77, 563-4; CLR 509-10):
“A superior Court is a Court of general jurisdiction…it will be presumed to have acted within jurisdiction…A federal Court created by Parliament, such as the Family Court, cannot have a general jurisdiction conferred upon it. Its jurisdiction can be no wider than that permitted by sec.75 and 76 of the Constitution and in so far as jurisdiction is conferred, as is the case with the Family Court, in matters arising under a law or laws made by Parliament, there is a further limit to be found in the definition of Commonwealth legislative power.
…
All of this is to deny the scope of sec.21(2) of the Family Law Act which its terms would otherwise suggest. Because of the presumption as to jurisdiction, in general prohibition does not go to a superior Court. See London v Cox (1867) L.R. 2 H.L. 239. But prohibition is that means provided to keep federal Courts created by Parliament within the bounds of their jurisdictional limits and with those Courts there can be no presumption as to jurisdiction to displace this remedy. Moreover, where the jurisdiction of a federal Court is dependent upon the existence of facts which also mark the limit of the constitutional power to create the jurisdiction, the federal Court does not have, and cannot be given, the power to determine conclusively the existence of those facts; that power is reserved to this Court…
…
The significance of this for present purposes is that an order or judgment of the Family Court is susceptible to collateral attack for want of jurisdiction and if it be found that jurisdiction is lacking, the proceedings before that Court are coram non judice and an order or judgment is a nullity.”
It is undesirable in this case to attempt to finally determine this issue. HACS made no submissions in relation to it and the other parties were unrepresented. We think that in these circumstances and until this matter is determined in an authoritative way we should adopt a conservative approach, especially in contempt proceedings, that is, once the validity of this order is challenged, as it can be in collateral proceedings, it should be treated as having been made in excess of jurisdiction. This issue was identified in the contempt proceedings and we think that the preferable course here was to treat the order as invalid, once that issue was raised, and not an appropriate basis for contempt proceedings.
The High Court, in refusing the application for special leave to appeal against the decision of the Full Court of the Family Court in relation to custody and access, also refused special leave to appeal in relation to the contempt charges.

Administrative Appeals Tribunal Victoria proceeding

In order to further (but even then not completely) describe the extent of litigation in which Mrs Field was involved, mention should be made of proceedings brought by her against HACS. On 8 August 1995 Mrs Field applied to the Administrative Appeals Tribunal of Victoria (AAT) seeking to review:
[1]a decision made by the Respondent on 19 September 1994 to take the child from the Royal Children’s Hospital to the Children’s Court for a hearing of a protection application made by the Respondent that day;
[2]a decision made by the Respondent on 23 September 1994 to intervene in proceedings in the Family Court in respect of the child;
[3]an order made by the Family Court on 23 September 1994 that until further order all parties be restrained from taking the child to any doctor, psychologist, psychiatrist or counsellor;
[4]a “refusal” by the Respondent to protect the child from sexual and physical abuse; and
[5]numerous unspecified orders made by the Family Court and the Children’s Court in respect of the child.
On 16 August 1995 the AAT dismissed the application. Mrs Field applied to the Supreme Court of Victoria seeking an extension of time within which to appeal against the order of the AAT. Beach J dismissed the application. She appealed to the Court of Appeal. The Court of Appeal dismissed her appeal on 10 November 1995. On 12 December 1996 the High Court (McHugh, Gummow and Kirby JJ) dismissed her application for special leave to appeal. Their Honours said:
“The application for special leave is misconceived. The Applicant seems to want either the Tribunal or this Court to conduct a review of the decisions of the Family Court and the Children’s Court and the Respondent’s actions in respect of her claims. But neither the Tribunal nor this Court has any jurisdiction to carry out such a review.”

THE COMPLAINT TO THE COMMISSION

Following the dismissal of her appeals by the Full Court of the Family Court on 24 September 1997, on 19 November 1997 Mrs Field wrote to Mr Sidoti, the Human Rights Commissioner as follows:
“With reference to my applications of
(1)Ref: dgc 11051 (H), letter 9 May 1995 from Kevin O’Connor, Acting Human Rights Commissioner and
(2)Ref: C 206268FC (H), letter 26 August 1997 from Chris Sidoti, Human Rights Commissioner and
(3)The unlawful arrest of my daughter, Isabel Joy Nelson, by the Federal Police at Woden, on a public highway near Parliament House in Canberra on 7-5-95 - my daughter’s letter of permission is attached, and
(4)The unlawful and illegal arrest of my grandchild, then 4 years old, by the Federal Police at Woden, on a public highway near Parliament House in Canberra on 7-5-95 - mother’s letter of permission is attached, AND ALSO
(5)The breach/violation of Part 11, Article 9 of the International Covenant on Civil and Political Rights, the ICCPR, by the Federal Police being a power of the Government of Australia:
quote:              “Article 9
1.Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
2.Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3.Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but may be released subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
4.Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5.Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation.
I am complaining that my granddaughter has never been released from this false arrest and that there has never been any court hearing to determine the lawfulness of both or either of these arrests.
I have attached a copy of page 42 of the Judgment of the Full Court of the Family Court of Australia [which is set out in para 38 of these reasons]. Please read the last paragraph that explains that the orders of the Family Court, and of 8-11-96, should be treated as “having been made in excess of jurisdiction.”
My appeal to the High Court is File No. M 83 of 1997 and the mother’s is M93 of 1997.
I am also complaining that the child’s warrant (I obtained a red sealed warrant after the child’s arrest as I am a party to the proceedings) was issued by the management of The Family Court without authority and in defiance of Justice Treyvaud’s Order of 24-10-94 although Condition 1 of that order had not been fulfilled – i.e. the Department of Health & Community Services, renamed Human Services did not file the consent notice as ordered although the Department had assured Justice Treyvaud in The Family Court on 24-10-94 that they would do so. Federal and State laws co-exist.
There is always the possibility that the one page warrant used by the Federal Police to arrest the child was fraudulent at the time of the child’s arrest and had not been issued by the management of The Family Court up to that point. In any case both warrants used by the Federal Police were defective.
I am also complaining that the Family Court Order of 23-9-94 was not attached to the one page warrant for the child used by the Federal Police although it was stated on the warrant that this order was attached. Had the Federal Police read the warrant, they could not have arrested the child because they would have noticed that the one page warrant was defective.
I am also complaining that the Federal Police did not use a duty of care towards the child and breached the Family Court Order of 23-9-94 because they gave the child to the man, Michael Nelson, although he was not supervised as required according to the Order of 23-9-94.
Neither of the two previous letters from your office made any mention of Australia’s breaches of Part 11, Article 9 of the ICCPR as quoted. These are not the only breaches of International Treaties, but an example. No authority in Australia claims to have jurisdiction. What we have is the one case administratively divided into many parts with jurisdictions in various sectors.
It is not possible to further obtain legal advice because no solicitor wants anything to do with the case because of the illegal Family Court proceedings. Even the Victorian Legal Aid Commission could not find me a Family Law solicitor for the Family Court case. What I understand is that to urge the police to arrest a child without going through the due process of legal requirements is called Treason and that Treason is a matter for parliament, not the courts. Solicitors refuse to provide legal advice because they do not want anything to do with the treason.
I have provided new evidence, page 42 – “in excess of jurisdiction” and the violations of Article 9 of the ICCPR have never been considered by you. Please advise.
Yours faithfully,
[signed]        maternal grandmother
   Meret Field B.A., Gr.Dip.Teach.,
  B.Ed.ST., M.E.P.A.”
[Emphasis in original]
The Commission replied by letter dated 16 December 1997 as follows:
“I refer to your letter received by this Commission on 28 November 1997. In your letter you complain about the fact that, on 7 May 1995, your daughter and granddaughter were allegedly unlawfully arrested by the Federal Police at Woden on a public highway near Parliament House. You allege that both of the warrants of arrest used by the Federal Police were defective and therefore the arrests were unlawful. You claim that this constitutes a breach of your daughter’s and granddaughter’s human rights, specifically article 9 of the International Covenant on Civil and Political Rights (ICCPR).
You further claim that, with regard to your complaint received by this Commission on 10 July 1997 (our reference 206268 FC (H)), you have never received an adequate response from Commissioner Sidoti, the Human Rights Commissioner, in that he did not address your allegations of a breach of the ICCPR.
I will address your complaint regarding your daughter’s and granddaughter’s arrest first. Under section 11(1)(f) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act), the Commission has authority to inquire into any act or practice of a Commonwealth agency that may be inconsistent with or contrary to any human right. Under the Act, ‘human rights’ is strictly defined, and relates specifically to human rights outlined by international agreements scheduled to the Act. Those international instruments currently include the ICCPR.
Under section 20(2)(c)(i) of the Act I may decide not to inquire into complaints about acts that occurred more than twelve months ago. When deciding whether to exercise my discretion, I may consider, among other things, the reasons for the delay in lodging the complaint, the length of time lapsed since the incident, the nature of the incidents and whether there are other avenues for redress. The claims you make about the alleged unlawful arrests involve events that occurred well over the twelve-month period in which a complaint should be lodged. It is also my view that a more appropriate avenue to your complaint, namely the appeal processes available through the court system, is available. In the circumstances I have decided pursuant to section 20(2)(c)(i) and (iv) of the Act not to inquire into the acts about which you complain.
The Commission will not be proceeding any further with your complaint and consequently your file is now closed.
With regard to your claim that Commissioner Sidoti, the Human Rights Commissioner, failed to respond to your allegations of a breach of the ICCPR made in your complaint received by this Commission on 10 July 1997, I refer you to Commissioner Sidoti’s letter to you of 26 August 1997. In this letter Commissioner Sidoti advises you that this Commission will not be inquiring further into your complaint. Commissioner Sidoti further advises that the term ‘human rights’ is strictly defined, and relates to specific international instruments which are given effect under the Act. As stated above, these international instruments currently include the ICCPR. However, as explained in that letter, the ICCPR does not relate to actions of State agencies. I hope that this clarifies the situation.
I regret I am unable to be of assistance in these matters.
Yours sincerely,
[signed]
Julie Kinross
Delegate for the Human Rights Commissioner”

The Commission stated that it acted under s 20(2)(c)(i) and (iv) of the Human Rights & Equal Opportunity Commission Act 1986 (the Act) which provide:
“(2)The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:
…
(c)in a case where a complaint has been made to the Commission in relation to the act or practice:
(i)the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice;
…
(iv)the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice;”

THE APPLICATION FOR REVIEW

On 14 January 1998 Mrs Field filed an application for an order of review in this Court. An amended application was filed on 20 April 1998 to include allegations against the second respondent which had then been joined as a party. It is not possible to summarise the contents of this document adequately so I set it out in full:
“Application to review the decision of the 1st Respondent that the Human Rights and Equal Opportunities Commissioner is unable to be of assistance in these matters, and the evasion of the international responsibility and obligation of the Commonwealth of Australia as per International Treaties with the United Nations.
The applicant is aggrieved by the decision because-
1.her very young granddaughter has been left in distress and unprotected by the Australian government in violation of International Human Rights Treaties to the contrary, and
2.the child has never been released from her illegal and unlawful arrest by the Federal Police on 7-5-95 although the applicant complained to the Commission before the arrest and five months after the child’s arrest and at other times, and
3.Australia has not rectified violations of International Treaties as per Communication with the United Nations, Committee Against Torture, Centre for Human Rights, Geneva, File No. 6150 215/4, and
4.Low standards of evidence, treason and high level crime is acceptable to The Family Court and has separated my grandchild from her biological and maternal family to be left with a non-biological family without the required hearing in the court designed for such a child welfare case, the Children’s Court of Victoria.
The grounds of the application are-
1.The Human Rights Commission does have jurisdiction because the Family Court does not, and
2.the applicant has complained within the time limit, and
3.Human Rights breaches were caused by incorrect procedures and unlawful proceedings being accepted by the Family Court system even regardless of the findings of the Full Court of the Family Court, and the Full Court of the High Court of Australia, and
4.The Department of Human Services of Victoria suspended state laws to use a pretended power in a Federal jurisdiction that was outlawed in the Bill of Rights of 1688/89, and
5.Cruel and illegal or unusual punishment was outlawed in the Bill of Rights 1688/89, and
6.No parliament has determined whether the crime involved in the child’s arrest without due process of legal requirements having been fulfilled, is treason or felony, and
7.The Australian Parliament claims to be leading the world on child protection, but is allowing the Department of Human Services, Victoria, to use Federal authorities in the non-protection of children and the agenda for paedophilia, in violation of International Human Rights Treaties to the contrary, and
8.The cruelty and ill-treatment of mother, child and maternal grandmother is a breach of International Treaties that could cause a Mobilization of Shame to be inflicted on the Australian people by world nations at large.
9.Section 75 of the Australian Constitution means that in all matters arising under any treaty, the High Court shall have original jurisdiction.
The applicant claims-
1.The Human Rights and Equal Opportunities Commission, as 1st Respondent, and the Commonwealth of Australia, as 2nd Respondent, should be ordered to investigate
(a)the violations of International Human Right Treaties, and
(b)the abuse of power in the Family Court and the fraud that caused the Federal Police to be urged to arrest the child without the due process of legal requirements having been fulfilled, and
(c)the unlawful and illegal arrest of the child, and
(d)the unlawful arrest of mother,
(e)the pretended power of the said Department in The Family Court and their suspension of state law as outlawed in the Bill of Rights of 1688/89, and
(f)the cruelty and ill-treatment caused by breaches of International Human Rights Treaties and the Bill of Rights 1688/89 in The Family Court of Australia, AND
2.The said Commission, as the 1st Respondent, and the Commonwealth of Australia, as the 2nd Respondent, should be ordered to refer the matter to the Federal Police for investigation and rectification to cause the release of the child from her false arrest, AND
3.The said Commission, as the 1st Respondent, and the Commonwealth of Australia, as the 2nd Respondent, should be ordered to submit a comprehensive written REVIEW of their investigations to the Applicant within a reasonable amount of time, considering that the applicant complained to the Commission before the child’s illegal and unlawful arrest, and also afterwards within the allowable time limit, and has endeavoured to use up all Domestic Remedies as required by the United Nations, AND
The applicant requires
4.A certificate to the High Court.
5.Any order that this Honourable Court thinks fit.
6.The Commonwealth of Australia to pay costs.
DATE: 20 April 1998  maternal grandmother and Applicant
  Meret Field B.A., Gr.Dip.Teach.,
  B.Ed.St., M.E.PA.”

THE APPROACH TO THE UNREPRESENTED APPLICANT

The present case raises starkly the difficulties facing a court dealing with an unrepresented litigant. Mrs Field appeared for herself. She obviously has a very strong sense that she, her daughter and granddaughter have been the subject of grave injustice. The strength of her commitment to that view has made it difficult for her to isolate the issues relevant to these particular legal proceedings. The difficulties are compounded by the underlying complexity of the extensive factual and legal background of the proceedings. Further, the Court has not been assisted by representation of the Commission. This is not said critically. The Commission adopted a submitting appearance doubtless in accordance with the principles enunciated in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36. See also Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and “X”, (Federal Court of Australia, unreported, Full Court, 13 January 1998). There are good reasons for such a course.
Where one party is unrepresented the role of the Court is to “assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”, Neil v Nott (1994) 121 ALR 148, 150. Further, “the Court will…be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done”, Rajski v Scitec Corporation Pty Ltd, (Butterworths unreported judgments, 16 June 1986, NSW CA and per Mahoney JA at 27).
Where one party to the litigation is unrepresented and the other is represented the Courts have warned that judges must avoid compromising the stance of neutrality by unfairly assisting the unrepresented litigant to the disadvantage of the represented litigant: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445-6. In the present case the same principle applies, although its application is different because one party to the litigation is unrepresented and another did not participate in the hearing.
There can arise a tension between the need for the Court to assist an unrepresented litigant and the need to maintain its stance of neutrality. In dealing with that tension it must be remembered that the Court must not assume the role of legal adviser to the unrepresented litigant, and is restricted to the determination of the proceedings before the Court.
One important way in which the Court can assist an unrepresented litigant in an effort to ascertain the rights of the litigant, is to utilise the flexibility available in the procedure of the Court. Thus, in the present case, Mrs Field was permitted to reopen her case in circumstances in which a represented litigant would probably not have been permitted to do so. As will be described later in these reasons, this course was adopted to give Mrs Field the most generous opportunity possible to expose all matters which she regarded as relevant to her case. These reasons will now first deal with the initial case put by Mrs Field, and then with the additional matters put by her when the case was reopened.

THE APPLICANT’S INITIAL ARGUMENT AGAINST THE COMMISSION

The arguments upon which Mrs Field relies and the bases for them are found in the amended application which has been set out in full earlier in these reasons, in several affidavits sworn by Mrs Field and filed in the proceedings, in an outline of argument filed by Mrs Field pursuant to pre-trial directions, and in her oral argument at the hearing of the application.
The underlying complaint which this material makes is that Margaret should not have been handed over to Mr Nelson and placed in his custody, and that Mrs Field and Mrs Nelson should not have been excluded from contact with Margaret. The underlying complaint has given rise to a number of separate arguments. Piecing together her case as best I can from the various sources referred to above, it appears that Mrs Field relies on the following five arguments:
The first argument is that the apprehension of Margaret and arrest of Mrs Nelson was in breach of the law because:
· the warrants for the apprehension of Margaret and the arrest of Mrs Nelson were invalid because the orders to issue the warrants were based on the orders made by Graham J which were made in breach of s 60H(1) of the Family Law Act and were therefore themselves invalid;
· the warrant for the apprehension of Margaret handed to the Federal Police did not have a copy of the order of Graham J attached to it although it stated that it did so;
· Margaret was handed over to Mr Nelson without supervision in breach of other orders of the Family Court which prohibited unsupervised access by Mr Nelson.
The next argument seems to involve a general attack on the Family Court and the decisions of each of the judges who have found against her submissions. By way of one of many examples, Mrs Field stated in her outline of argument:
“Justice Brown refused to consider my interpretation of events, the findings of the Full Court of the Family Court of 19-6-95 whereby the orders of The Family Court were found to be invalid, or any findings of the Full Court of the High Court, and regarded the punishment of mother and child as a warning to anyone else who would communicate with the United Nations.”
The third argument seems to be that the treatment of Margaret and Mrs Nelson by the decisions of the Family Court, and their apprehension and arrest by the Federal Police have violated their human rights as guaranteed under international treaties.
The fourth argument seems to be that the Children’s Court and not the Family Court should have dealt with the questions of custody and access.
The fifth argument is directed specifically to the Commission’s decision not to enquire further into the question of the execution of the warrants to apprehend Margaret and arrest Mrs Nelson. This argument seems to rely on three propositions which are set out in the following paragraphs.
First, the Commission failed to consider certain facts. The facts upon which Mrs Field relies are a repetition of all the complaints that the human rights of Margaret and Mrs Nelson were violated, that the warrants were invalid because they were based on orders made without jurisdiction together with some other matters. For example some of the facts allegedly not taken into account by the Commission were set out in paragraph 5 of Mrs Field’s “amended” affidavit sworn on 19 and 20 April 1998 as follows:
“5. Julie Kinross failed to give consideration to the fact that:
(a)A child deserves to be protected by her country in that violations of International Treaties signed and ratified by the Federal Government of Australia – as prevalent in this matter – should not occur and would cause a Mobilization of Shame to be inflicted on the Australian people by world nations at large particularly because Australia purports to be leading the world on child protection, and
(b)A child should be given special consideration, and
(c)The desecration of child protection standards in Australia is not in the public interest, and
(d)A number of applications had been sent to the Human Rights Commission, 1st Respondent, since 1995, relating to government persecution of my granddaughter, Margaret Isobel Nelson, born ex-nuptial on 26-6-90 in the name of Field, and remained Field until her very first birthday when the non-biological man, Michael Nelson, married mother and fraudulently signed the legitimation form and the natural father form to have his name entered on to the child’s birth certificate as father. I have applied under Freedom of Information for the 1st Respondent’s file and have the file.
(e)This man, Michael Nelson, does not have a compatable [sic] blood group to be father of the child and does not have any similar physical characteristics with the child as would be obvious if he was father of the child.
The letter from the Australian Democrats of 5-12-94 to the Department of Health & Community Services, Victoria, is attached and marked “C” and is on pages 162-163 of the Communication to the United Nations of 26-2-96, and
(f)The Human Rights and Equal Opportunity Commission, 1st Respondent, has previously made many mistakes in dealing with the government persecution of my granddaughter by claiming that they did not have jurisdiction when they did have jurisdiction, as follows:
Firstly, breaches of Commonwealth Legislation e.g. Section 60(H) of the Family Law Act 1975,
and secondly, a continuation of these breaches even in defiance of the findings of the Full Court of the Family Court on 19-6-95, and the Full Court of the High Court on 7-3-96,
and Thirdly, any violations of their judicial oaths to obey the law and not bo [sic] make orders without jurisdiction, does not invalidate the jurisdiction of any other Government Agency. Page 42 of the Judgment of the Full Court of the Family Court of 24-9-97 is attached and marked “D” as further evidence that the Family Court did not have jurisdiction to make orders. My appeal to the High Court is M 83 of 1997 and mother’s is M 93 of 1997.”
Second, the Commission ignored the fact that Mrs Field had made a complaint within twelve months of the arrests.
Third, the Commission was mistaken that the appeal process was available through the court system to Mrs Field in relation to the apprehension of Margaret and the arrest of Mrs Nelson. The argument is set out in para 11 of the “amended” affidavit. In three pages Mrs Field sets out a strong and rather intemperate criticism of the judges of the Family Court who have heard proceedings in the matter. She draws attention to the limitation imposed upon her in taking further proceedings by the order declaring her a vexatious litigant. The point she seeks to make is that she has no confidence in vindicating the human rights of her daughter and granddaughter through a system which has so far failed to yield her any success in what she ultimately seeks.
Ordinarily, the purpose for which relief is sought is not a material matter in an application such as the present. In this case it deserves some consideration because Mrs Field is unrepresented and the enquiry may serve to clarify some of her arguments. The purpose for the relief which Mrs Field seeks is not easy to understand at first sight. She seeks an order that the Commission investigate the arrests (paragraph 1 of the prayer for relief in the amended application). She also seeks an order, presumably in the alternative, requiring the Commission to refer the matter to the Federal Police “for investigation and rectification to cause the release of the child from her false arrest” (paragraph 2 of the prayer for relief in the amended application). She perhaps hints at the purpose for the relief sought in paragraph 12 of the amended affidavit where she states:
“The child has not been released from her unlawful and illegal arrest by the Federal Police and no court has ever heard a case to determine the legality of the warrants used by the federal Police to arrest mother and child.” [Emphasis in original]
As the warrants have been executed and Mrs Nelson and Margaret are not now detained pursuant to them, it might be wondered what practical value an enquiry by the Commission would have in the circumstances. Of course, there may well be a purpose in the exposure of wrongdoing if there has been any wrongdoing. But it seems that Mrs Field has a different purpose. It is explained in the following exchange which occurred at the hearing of proceeding No V 81 of 1999 on 8 July 1999, which proceeding is referred to in more detail later in these reasons:
“HIS HONOUR: …what is it that you seek in practical terms when you say that you want your daughter and grand daughter released from the unlawful detention. I don’t see that - - -
MS FIELD: It’s just my grand daughter, not my daughter.
HIS HONOUR: Your grand daughter, yes. She isn’t in detention, is she?
MS FIELD: She is, because this man has the child…The injustice of him having the child, and he was able to use these professional methods unlawfully in the courts of law - unlawfully. He had no legal right to have the child and because of these orders he still has possession of her, which he shouldn’t have had because he gained possession of her using all these unlawful methods in the courts of law. It’s the court orders which the Full Court of the Family Court found to be in excess of jurisdiction and the High Court refused to hear - why he still has this child. It is that order that is keeping her in his possession.”

CONSIDERATION OF THE INITIAL CASE AGAINST THE COMMISSION

The first four arguments which I have sought to identify in paras 52-55 all seek to show that there are strong reasons for the Commission to conduct an enquiry, and there is good reason why it should not have refused to consider the matter further. In other words, Mrs Field contends that the merits of the case are so compelling that the Commission should have entertained the enquiry.
In relation to the Commission’s decision not to enquire further the scope of the Court’s function is limited. It is not entitled to determine whether the decision is one which the Court would itself make on the merits of the case. In an oft-quoted passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 Mason J (as he then was) said:
“(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (41).”

See also: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration & Multicultural Affairs v Moges Eshetu (1999) 162 ALR 577 at 607.
Thus, to the extent that the first four arguments were raised, as I think they were in part, to suggest that the Commission was wrong on the merits in refusing to enquire, the approach cannot succeed.
Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides the grounds of review of administrative decisions such as the present in the following terms:
“A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law.”
Subsection 2(b) provides:
“The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
…
(b)failing to take a relevant consideration into account in the exercise of a power;”
Part of the final argument relied on by Mrs Field and referred to in para 57 of these reasons, namely, the failure to take into account certain facts, suggests a ground of review under s 5(1)(e) and (2)(b) of the Administrative Decisions (Judicial Review) Act. This ground, however, cannot be sustained. Mrs Field set out her complaint in her letter dated 19 November 1997. It contained the relevant matters which she desired to place before the Commission. The Commission’s response refers to that letter and deals with the allegations made in it. To the extent that there are matters raised before the Court as relevant factors which were not placed before the Commission, they cannot be a basis for impugning the decision of the Commission. It is no valid complaint against the Commission that it failed to take into account matters which Mrs Field did not place before it. The decision as it stands does not provide any evidence that the matters raised by Mrs Field in her complaint were not taken into account by the Commission.
Next Mrs Field challenged the reasoning of the Commission that she did not make a complaint about the execution of the warrants within twelve months of the apprehension of Margaret and the arrest of Mrs Nelson. She contended that she had complained within twelve months. She submitted that the Commission failed to take into account a letter from her dated 7 October 1995, that is, within twelve months of the apprehension and arrest.
It is necessary to set out parts of the course of correspondence of which the letter dated 7 October 1995 forms part. Mrs Field wrote to the Commission on a number of occasions before April 1995 complaining about the orders made by the Family Court. On 9 May 1995 the Commission replied as follows:
“Dear Mrs Field,
I refer to your letters of 05 October and 08 December 1994 and the 13 and 20 April 1995 concerning an order made by the Family Court of Australia restraining all parties to proceedings held on 23 September 1994 from taking your grandchild to any doctor, psychologist, psychiatrist or counsellor unless to give effect to those orders, until a further order was made by the Court. In addition you provided me with a copy of orders made on 02 December, 1994 by the same court which included the issuance of a warrant against your daughter for breach of the earlier orders.
The Commission administers five Federal Acts of Parliament, one of which is the Human Rights and Equal Opportunity Act 1986 (the Act). Complaints under the Act are lodged by people who allege discrimination in employment or an infringement of their human rights. “Discrimination” and “human rights” are strictly defined and relate to specific international instruments to which Australia is a signatory.
The provisions which relate to human rights require that the subject matter of a complaint arises from an act or practice of the Commonwealth. However, I am only able to inquire into non judcial [sic] matters relating to any Federal Court. As your concerns relate to an order made by the Family Court of Australia, I have no choice but to decide not to inquire into this matter under Section 20(2)(a).
Should you wish to pursue the matter further, you would need to make an application to the Family Court. I regret the Commission is not able to be of assistance to you on this occasion. Thank you for taking the time to place your concerns with the Commission.
Yours faithfully,
[signed]
Kevin O’Connor
Acting Human Rights Commissioner”
At this time the Commission obviously had not been told of the execution of the warrants, which had occurred only two days before the date of the letter.
On 7 October 1995 Mrs Field again wrote to the Commission as follows:
“Dear Sir,
Please read my letter to the Attorney-General, Michael Lavarch.
I refer you to Page 153 No 9.4 of the book published by the Commonwealth Government that refers to your duties under the Convention on the Rights of a Child, and to your letter of 9 May this year.
A Review of Australia’s Efforts to Promote and Protect Human Rights.
quote
“The Human Rights and Equal Opportunity Commission, can, however, conciliate complaints about acts or practices of the Commonwealth (but not individuals) which breach these rights.”
This is not just an individual problem.
In the Family Court of Australia it is the common practice for a child to be given to an alleged child sex abuser for access when the mother and/or the child alleges sexual abuse including the criminal act of sodomy on the child. The mother is tested. If she allows access, the allegations are considered to be incorrect. In our case, the mother did not allow access, but the child was taken off her on an unlawful warrant and the child was traumatized when given to the child sex abuser as disclosed by the Federal Police. The barrister, J. Scutt, phone (03) 9608 8916 advised a community meeeting [sic] about this for the National Child Protection Week. Please explain why you allow this practice which is in breach of the international Convention on the Rights of a Child. Please explain the correct method to complain about it so that the breach of international agreements is rectified.
Yours faithfully,
[signed]
(Ms MERET FIELD B.A.,Gr.Dip.Teach., B.Ed.St., M.E.P.A.)”
On 16 October 1995 the Commission replied as follows:
“Dear Ms Field,
I refer to your correspondence concerning the Commission’s jurisdiction in relation to decisions of the Family Court of Australia. I understand that access and custody arrangements of your grand-daughter, Margaret Isobel Nelson, born Field, also known as Lucy McKenzie, are in dispute and that your appeal before the Full Bench of the Family Court was refused.
You express your dissatisfaction with the Commissioner’s decision, communicated to you by a letter dated 9 May 1995, not to inquire into this matter. I appreciate that this matter is of great concern to you. I have attempted to call you today on the numbers you gave in July 1994 ((06) 287 1519 and 0411 24 36 49), unsuccessfully, to further explain the reasons for this decision.
As previously explained, the Commission administers the Human Rights and Equal Opportunity Commission Act 1986 (the Act). Under the Act, “human rights” is strictly defined, relates to specific international instruments to which Australia is a signatory and only deals with acts done by Commonwealth agencies. One of the human rights instruments is the Covenant [sic] on the Rights of the Child.
Because the Constitution provides for the separation of the legislative, executive and judicial functions and powers of the Commonwealth, the Commission cannot inquire into an act or practice of a person exercising judicial power, for example, Family Court judges. This precludes investigation of any allegations that your granddaughter’s rights have been breached by a judicial decision. According to the Constitution, the judiciary cannot be subject to interference from either the legislature or the executive (which includes the Commission). Review is provided through the process of appeal.
While I realise that your sense of injustice is very real, the Commission is just not able to pursue this investigation under the Act. I trust that this information may assist you to understand your rights under the Act. You will appreciate that it is not appropriate for the Commission to continue any correspondence about this matter.
Yours sincerely,
[signed]
Catherine Melville
Senior Investigation/Conciliation Officer”
Mrs Field contends that the relevant complaint was made on 7 October 1995 and was therefore made within twelve months after the execution of the warrants on 7 May 1995. The correspondence however, shows that the complaint made on 7 October 1995 was dealt with by the Commission on 16 October 1995. No application for review was brought in respect of that decision, and any such review would have been more than two years out of time when the present application was filed on 14 January 1998 (s 11 Administrative Decisions (Judicial Review) Act).
The complaint, which was resolved by the decision of the Commission made on 16 December 1997, was the complaint made by Mrs Field on 19 November 1997. That complaint was, on its face, made more than twelve months after the execution of the warrants which occurred on 7 May 1995.
The Commission decided not to enquire further into Mrs Field’s complaint for two reasons. One was that the events occurred more then twelve months before the complaint, and the other was that the appeal processes were available through the court system. Either of these reasons was sufficient to sustain the Commission’s decision to enquire no further. As I have found that there is no ground available to successfully challenge the decision on the first basis given by the Commission, it is not necessary to determine whether the alternative basis was available. However, I should indicate that there is also no basis for a successful challenge to the decision on the alternative basis given by the Commission. The fact that Mrs Field has failed in most applications she has made to the Courts, and has been declared a vexatious litigant, does not mean that there is no system available to her to mount a legal challenge to the execution of the arrest warrants. She has not demonstrated any reviewable error by the Commission in this regard.
THE APPLICANT’S INITIAL ARGUMENTS AGAINST THE COMMONWEALTH
The relief, which Mrs Field seeks against the Commonwealth, is the same relief as she seeks against the Commission. That is, she asks the Court to order that the Commonwealth investigate breaches of international human rights treaties, abuse of power in the Family Court, the unlawful arrest of Mrs Nelson and the unlawful apprehension of Margaret, the role of HACS in participating in the Family Court proceedings rather than insisting that the Children’s Court proceedings determine the question of custody and access, and the cruel and inhuman treatment caused by the breaches of international human rights treaties. She also asks the Court to order that the Commonwealth refer the matter to the Federal Police for investigation and rectification by causing the release of Margaret from her false arrest, and that the Commonwealth submit a comprehensive written review of its investigations to Mrs Field within a reasonable time.
The Commonwealth was added as a respondent by order of Registrar Efthim made on 14 April 1998. The particular material that Mrs Field relies upon against the Commonwealth was contained in an “amended” affidavit filed on 20 April 1998. It may serve to explain better what Mrs Field says against the Commonwealth to set out a short document described as an addition to that affidavit. After the existing reference to the fact that the application involves violations of the International Covenant on Civil and Political Rights (United Nations 1966: ATS 1980 No 3) (ICCPR) and the Convention on the Rights of the Child (United Nations 1989: ATS 1991 No 4) by the Government of Australia, Mrs Field continued:
“The Commonwealth of Australia, 2nd Respondent, has
(a) an International Responsibility for the protection of my grandchild, Margaret, under International Treaties, but
(b) does not have a department or agent for the Status of Children, and
(c)is unable to implement its International Responsibilities to children in Australia, and
(d)put the child, Margaret, at risk by arresting the child on an unlawful and illegal warrant on a public highway in the A.C.T. on 7-5-95 to give her to the alleged child sex offender who has never been investigated, and was unsupervised, and was in breach of a number of Family Court Orders of 23-9-94 that had not been dismissed and have not been properly investigated, yet
(e)the child, Margaret, has not been released from her unlawful and illegal arrest.”
The Commonwealth accepted that this Court has jurisdiction to hear the application against the Commonwealth pursuant to s 39B(1A)(a)(c) of the Judiciary Act 1903 (Cth) and as part of the Court’s “associated” jurisdiction.

CONSIDERATION OF THE APPLICANT’S INITIAL CASE AGAINST THE COMMONWEALTH

The Commonwealth contended that it has no enforceable duty to investigate decisions of the Family Court or refer the matter for investigation by the Federal Police.
Mrs Field referred to the ICCPR and the Convention on the Rights of the Child as the basis for some relief from the Court. As to the former, Mason CJ and McHugh J said in Dietrich v The Queen (1992) 177 CLR 292 at 305:
“Ratification of the I.C.C.P.R. as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the I.C.C.P.R. are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions (64).”
See also Toohey J at 360: Victoria v The Commonwealth (1996) 187 CLR 416 at 480-482; Sinanovic v The Queen (1998) 154 ALR 702 at 707.
As for the Convention on the Rights of the Child, Mason CJ and Deane J said in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 286-7:
“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute (32). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive (33). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”
See also Toohey J at 298, Gaudron J at 304, and McHugh J at 315.
Thus even if it had been shown that the Commonwealth had acted in breach of the ICCPR or the Convention on the Rights of the Child, in the absence of specific domestic legislation incorporating the international obligations referred to in those instruments, Mrs Field would have no domestic legal rights against the Commonwealth. In so holding I should make it clear that the evidence does not satisfy me that the Commonwealth is in breach of its obligations under those instruments. One cannot hear Mrs Field conduct her case without becoming acutely aware of her strong feelings about the result of the Family Court proceedings. However, her disappointment over the result of those proceedings does not make a complex and difficult family law issue into an international human rights issue. Similarly, Mrs Field has not demonstrated that the Commonwealth has any obligation to investigate the actions of HACS.

REOPENING OF THE CASE

Judgment was initially reserved in this case on 17 August 1998.
On 11 September 1998 the High Court (Gummow and Hayne JJ) refused Mrs Field special leave to appeal against the decision of the Full Court of the Family Court made on 24 September 1997.
On 21 December 1998 Mr Hermie Colina, the Marshal of the Family Court, filed an application in the Family Court to have Mrs Field dealt with for contempt of court. The application alleged that Mrs Field had handed out leaflets containing contemptuous material in front of the Family Court on 11 and 14 December 1998.
On 23 December 1998 Guest J of the Family Court granted an interlocutory injunction restraining Mrs Field from making any contemptuous statements concerning the Family Court or any judge of the Court.
On 8 January 1999 Mrs Field wrote, inter alia, to the Commission requesting that it intervene in the contempt proceeding. On 8 February 1999 the Commission wrote a letter to Mrs Field which appeared to reject her request.
On 26 February 1999 she filed an application in this Court for review of the apparent decision of the Commission to refuse to intervene in the contempt proceeding. This application is V 81 of 1999. The detailed circumstances surrounding that application are set out in the reasons for judgment delivered at the same time as these reasons for judgment. The hearing of V 81 of 1999 occurred on 8 and 29 July 1999 and judgment was reserved on the latter date.
On 16 June 1999 Mrs Field filed a notice of motion in the present proceeding which sought that:
“…the proceedings…be opened up in light of new evidence whereby
(a)the Full Court of the High Court of Australia dismissed the applications for leave to appeal to the High Court, and
(b)proceedings of the Federal Court in a related matter, VG 572 of 1998 have been published, and
(c)the Applicant, Meret Field, has been charged and punished indefinitely by the Family Court of Australia for allegedly using the only available domestic remedy left in Australia as required by the United Nations - the democratic right to assemble and to protest politically. The Family Court has not argued its case.”
Mrs Field also sought that the present proceedings be amalgamated with proceedings V 81 of 1999 as they concerned, she contended, the same matter.
The affidavit in support of the motion elaborated the claim set out in para (c) of the notice of motion in the following paragraphs:
“3. The Applicant, Meret Field, verily believes that the Family Court
(a)charged and punished her on 23 December 1998 and 2 February 1999 without cause in order to cover up its white collar crime, and
(b)intends to jail her for a selected killing or a disappearance so that she cannot continue her appeal to the United Nations.
The international community is aware that selected killings and disappearances are known to exist in Australia.
4.Meret Field verily believes that the Family Court charged her with contempt on 23 December 1998 and on 2 February 1999 without any argument being presented because it intends to prevent Meret Field from exhausting domestic remedies in Australia as required by the United Nations for her Communication - United Nations File No. 6150 215.”

The motion was returnable on 28 June 1999. Mrs Field caused a subpoena to issue, returnable on the same day as the motion and directed to a law lecturer from Monash University, Ms Sarah Joseph. Mrs Field had commenced a graduate diploma in law at Monash University and Ms Joseph was one of her lecturers.
At the hearing on 28 June 1999 Mrs Field explained her argument as to the relevance of the refusal by the High Court to grant special leave to appeal against the orders of the Full Court of the Family Court as follows:
“Two things; one is that the High Court did not allow us to appeal to the High Court - we asked for leave - which means that we have used up all domestic remedies in the High Court. However, because this matter is particularly in relation to procedural matters and we were told that and because I have a communication with the United Nations, and this is what it was about, that although the international treaties might not have been incorporated into domestic law in Australia particular provisions which have been incorporated into law can be dealt with by the courts and what I’m saying is, because the Family Court didn’t have jurisdiction and knowingly didn’t have jurisdiction, and continued proceedings knowing that they had no jurisdiction, that this is a matter that can be resolved in Australia.
Therefore the Federal Court should be able to make some decision, should be able to find a domestic remedy which is what I am seeking in this court. What I find is that I have to use up all domestic remedies as required by the United Nations and because I’ve used up all domestic remedies in the courts of law other than this particular court, the only thing is political.”
On 28 June 1999 Mrs Field also contended that the interlocutory injunctions granted by the Family Court on 23 December 1998 prevented her from communicating her complaints about the treatment of Margaret to the United Nations and that this new development was relevant to the issues in the proceedings. She tendered the following interchange with Guest J which occurred in the course of the injunction application before the Family Court on 23 December 1998:
“MRS FIELD: …I think it is absolutely way beyond the legality of this court to make those type of orders so wide-stretching and also in particular when after communication with the United Nations, the Committee Against Torture, United Nations File Number 6150214, does this mean I cannot even communicate with them?
HIS HONOUR: Yes.”
Further, on 28 June 1999 Mrs Field sought to call Ms Joseph as a witness. When asked the purpose of the evidence Mrs Field replied that it was relevant to the case against the Commonwealth and it would explain the nature of the obligations of the Commonwealth in relation to human rights.
The application to reopen the case was most unusual. As Mrs Field was self-represented and harbours a very strong sense of grievance I thought it appropriate to allow her to reopen her case subject to strict terms which were intended to limit the further evidence and argument to the effect of the orders of the Family Court made on 23 December 1998. It was convenient to all concerned to hear Ms Joseph’s evidence immediately on 28 June 1999. Further, Mrs Field and the Commonwealth were given a short time to file written submissions thereafter concerning the significance of the orders made by the Family Court on 23 December 1998.
Mrs Field asked Ms Joseph a series of questions seeking to establish that the history of the treatment of Margaret and Mrs Nelson was a breach of Australia’s obligations under the ICCPR. However, the present proceeding can only concern the obligation of the Commonwealth under domestic law. As to this Ms Joseph said:
“…Their obligations under domestic law I can’t comment on.”
Then Mrs Field asked a further series of questions seeking to establish that the Family Court orders made on 23 December 1998 were made in breach of international treaty law. In the end Ms Joseph said:
“…and without knowing the reasons behind that order I can’t sit here and say it’s a straight out breach of treaty law.”
Finally, when asked about the existence of any domestic legal obligation on the Commonwealth to investigate the situation, the witness replied:
“…I can’t sit here and say they have a domestic legal responsibility to do that.”
Even if the evidence of Ms Joseph is admissible it does not support Mrs Field’s case that the Commonwealth has a legal obligation under domestic law to take action in relation to alleged breaches of the ICCPR. Ms Joseph is correct in her conclusion for the reasons explained earlier in this judgment. A recent authority for the conclusion is Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438 at 447-8. In the reopened case Mrs Field sought to rely on Minogue. In truth it stands against the case she now seeks to make. For instance, the Full Court said at 447:
“The provisions of an international treaty do not form part of Australian law merely because Australia is a party to the treaty and has ratified it. In consequence, the ICCPR does not of itself operate to give rights to or impose duties on members of the Australian community.”
The reference in the reopened case to the rejection by the High Court of the applications for special leave to appeal against the judgments of the Full Court of the Family Court was also misconceived. The rejections were said to show that a further domestic remedy had been denied to Mrs Field, and consequently there was a greater need for the Federal Court to make a declaration that she had exhausted domestic remedies. It seems that a communication to the United Nations Committee Against Torture will only be considered if the complainant has demonstrated that she has exhausted all available domestic remedies: Convention Against Torture and other Cruel, Inhuman or Degrading Treatment, (United Nations 1984: ATS 1989 No 21) Article 22. Indeed this is a common requirement under international legal mechanisms. But this court has no function in making declarations to that effect.
It may be that Mrs Field intended to submit that the refusal of special leave by the High Court and the injunctions granted by the Family Court supported her challenge to the decision of the Commission. If this was intended, the argument cannot succeed because the evidence relied upon by Mrs Field relates to events which arose after 16 December 1997 when the Commission made the decision which is impugned, and the evidence is not relevant to any of the grounds of review available in this case of the Commission’s decision.

APPLICATION TO JOIN THE STATE OF VICTORIA AS A PARTY

On 5 June 1998 Mrs Field filed a notice of motion which in part sought an order that the State of Victoria be joined as a party. This application was referred to Registrar Efthim for determination. On 18 June 1998 Registrar Efthim dismissed the application.
By notice of motion filed by Mrs Field on 9 July 1998, she applied for a review of the decision of the Registrar.
In support of that motion on 13 July 1998 she filed an affidavit, sworn on the same day, in which she deposed:
“…
2.This matter involves International Treaties and the need for me to use up all domestic remedies for my Communication with the High Commissioner for the United Nations File No. 6150 215/4, Centre for Human Rights, Geneva.
…
5.By not ordering the State of Victoria to be a party to the proceedings, a domestic remedy can not be found, injustice can not be corrected and the child can not be protected.
6.It is better for a domestic remedy to be found in Australia than for the matter to be resolved in the International Courts of Law as this would cause a Mobilization of Shame being inflicted on the Australian people by world nations at large.
…
8.The said Department has refused to accept responsibility for my grandchild, Margaret, by causing the welfare of the child to be left in the federal jurisdiction of the Family Court even though child welfare has always been a state matter.
9.By ordering the State of Victoria to be a party to the proceedings the State of Victoria will be forced to be accountable for the non-protection of the child.”
On 7 August 1998 she filed a document in support of the application for review entitled “submission and exhibit”, which relevantly stated:
“1.The Premier of Victoria, the Honourable Jeff Kennett M.P. has often referred my letters to the relevant Minister of Community Services, the Hon. Denise Napthine without any investigation taking place.
The Hon. Denise Napthine will not even comment on the breach of state legislation in Victoria whereby the Department of Health & Community Services, renamed Human Services, ran state law in conflict with federal law with opposing orders being made. The said Department refused to provide this information to Justice Brown or to the Full Court of the Family Court when questioned by the court.
………………… maternal grandmother
Meret Field
2.State legislation is not necessarily in conflict with International Human Rights Treaties. What is in conflict is the interpretation of state legislation by the Department of Human Services. For example
(a)legislation that is supposed to provide a child or a sick child with access to doctors of medicine is reinterpreted to mean a child should be protected from doctors of medicine even by a strict order of a court of law, and
(b)a child who has a known infection of her sexual organs as proven by pathology tests and needs specific types of pathology tests, and medication to cure the known infection of her sexual organs, should not be permitted access to doctors of medicine or to the necessary medication for any reason whatsoever even to prevent the infection from becoming a disease or to relieve the child of her irritation and abdominal pain.
(c)and that mother and child should be punished severely and not permitted to see each other again because mother proved that her child was sick with an infection and had and had [sic] an unacceptable medical condition of her bowels.
3.The State of Victoria should explain why it used collusion with the alleged child sex offender who has never been investigated, and used an unlawful and illegal means in opposing court systems for the desired end of possession of the child for the man, Michael Nelson. On 19^th and 20^th September 1994 the Department desired child to be give to this man. Magistrate Peter Power refused to do so and protected the child from this man and he had jurisdiction to do so.
4.The Parliament of Australia claims that the states agree to the International Human Rights Treaties that it signed including the State of Victoria.
International law is based on natural justice as is International Human Rights Treaties.
The letter from the Department of Premier and Cabinet, dated 30 July 1998, is attachd [sic] and marked “A” and implies that the Victorian Government does not agree with International Human Rights Treaties as signed and ratified by the Federal Parliament of Australia.
5.I am aware that the informal organizations of government bureaucracies in Australia are religious or fraternal in persuasion or membership.
I am aware of this fact because I completed my project for the qualification, Master of Educational Policy and Administration on the informal organization of a government bureaucracy.
I am also aware that the Department of Human Services is predominantly Roman Catholic in persuasion or membership.
6.The only variable that explains why the said Department assisted the Roman Catholic man gain possession of the Protestant child through the use of illegal and unlawful means in the courts of law is its religious discrimination.
7.The Department of Premier and Cabinet should explain why it does not recognize International Human Rights Treaties signed and ratified by the Federal Parliament of Australia.
8.A Mobilization of Shame inflicted on the Australian People because of violations of International Human Rights Treaties could reduce Australia’s human rights standards and record to the world at large because of the rejection of International Human Rights Treaties by the Victorian Government.”
It is necessary to revisit briefly some of the facts concerning the involvement of HACS in this case.
On 19 September 1994 HACS took Margaret from the Royal Children’s Hospital to the Children’s Court for the hearing of a protection application made by HACS on that day. HACS then determined to intervene in the Family Court proceedings on 23 September 1994 as amicus curiae. HACS called Ms Terri Bradley to give evidence. In his decision given on 23 September 1994 Graham J referred to Ms Bradley and her evidence as follows:
“…She is a protective services worker, and took out a protective order in the Children’s Court for the child Margaret.
The protective concerns seem to me based on one factor, and it is a significant factor, and that is that this child has been subjected to numerous medical examinations for abuse and sexually transmitted diseases, and as a consequence of this is at risk. She struck me as being an honest and expert witness. Though she was only cross-examined in a limited way, she said that she was concerned that the wife had little understanding of what was being put to her by Health and Community Services, and was concerned that the wife would ignore any court order or restraining order not to take the child to doctors. She pointed to up to 25 different doctors she alleges that the child has been taken to. It was clear from her evidence that it was the preferred position of Health and Community Services that the child be with the husband in the interim.”
On 8 August 1995 Mrs Field filed an application for review in the Administrative Appeals Tribunal of Victoria. She sought to review the following decisions:
“(a)a decision made by [HACS] on 19 September 1994, to take the child Margaret Nelson from the Royal Children’s Hospital to the Children’s Court for a hearing of the protection application made by [HACS] that day;
(b)a decision made by [HACS] on 23 September 1994, to intervene in a proceeding in the Family Court in respect of Margaret;
(c)an order made in the Family Court by Justice Graham on 23 September 1994 that until further order all parties be restrained from taking Margaret to any doctor, psychologist, psychiatrist or counsellor;
(d)a refusal by [HACS] to protect Margaret from sexual and physical abuse; and
(e)numerous unspecified orders made by the Family Court and the Children’s Court in respect of Margaret.
On 16 August 1995 the Administrative Appeals Tribunal dismissed the application. As earlier described, Mrs Field’s application for an extension of time within which to appeal to the Supreme Court against the dismissal was rejected by Beach J on 9 October 1995, by the Court of Appeal on 10 November 1995 and special leave was refused by the High Court on 12 December 1996.
At the trial before Brown J the involvement of HACS was fully canvassed. Her Honour rejected the criticism that HACS had failed to act properly to protect Margaret. Mrs Field was a party to those proceedings. She appealed against the decision of Brown J. The Full Court dealt with the role of HACS as follows:
“Brown J found that: “The wife’s assertions that HACS ignored her complaints, undertook no proper investigation and conspired to take (the child) from her, are not borne out by the facts” (Appeal Books vol.1 p.70) and she made the following findings in relation to HACS’ involvement in this matter.
On 26 April, 1994, an anonymous notifier “expressed concern about the wife’s lifestyle” to HACS but was “unable to give a current address for the child or mother” (Appeal Books vol.1 p.70). On 27 April, 1994, HACS contacted the grandmother who told them that the husband was not M’s biological father and that the wife was sexually abused as a child but that a Melbourne community policing squad were involved with the family in January 1994 regarding a rape allegation. HACS took no action when the police contacted them regarding the parties’ allegations that the grandmother was a cult-member and had attempted to abduct M because the parties told police they intended to apply for an intervention order against the grandmother on the following day, and “there was no apparent immediate risk to the child”, and the wife refused to meet with HACS and HACS was unable to contact the husband (Appeal Books vol.1 pp.70-1).
On 6 May, 1994, the grandmother told HACS that she suspected M was being sexually abused but gave no justification for her suspicion and indicated she did not know the location of the wife or M. HACS contacted the husband and on 16 May, 1994, and interviewed him in relation to the wife’s allegations that he had sexually abused M. On 17 May, 1994, the husband told HACS that the wife had taken M to Queensland but did not give them her address or phone number. After the husband gave HACS the wife’s brother’s phone number on 18 May, 1994, HACS called but was told that the wife had left on 17 May and was staying in a hotel. HACS referred the case to the Queensland Department of Family Services.
The wife contacted HACS on 27 May, 1994 alleging that the husband was raping M but she refused to leave a contact number or address. HACS workers attended a medical appointment which the wife organised at a Melbourne hospital. HACS also gave information to the Tasmanian Child Welfare Department when the wife took M to a Tasmanian hospital for a medical examination. HACS temporarily closed the case on 9 August, 1994 after they failed in attempts to contact the wife upon her return to Melbourne. But on 9 September, 1994, the wife attended an interview with HACS workers and informed them that M was sexually abused probably by the husband. A few days later, the workers were informed of the applications by the grandmother for custody and by the husband for access which were filed in the Family Court. HACS attended another medical examination of M on 19 September, 1994 at a Melbourne hospital and “on the grounds of likelihood of significant emotional harm to the child”, they issued an urgent protection application when the wife “reacted angrily to their attendance” (Appeal Books) vol.1 p.73).
On 23 September, 1994, HACS intervened in the Family Court proceedings. In October 1994, after being informed that the wife and M were in Queensland, HACS asked Queensland police to investigate M’s situation. The police refused HACS’ request to retain M in custody until the hearing of and pending Family Court proceedings. On 11 May and 15 June, 1995, HACS interviewed M at the husband’s home.
However, Brown J did find that: (Appeal Books vol.1 p.127)
“The decision by HACS to run tandem proceedings, invoking - apparently almost at random - the jurisdiction of this Court and the Children’s Court was extraordinary. Whether made in ignorance of the law or with intent, it made an already complex case far more complicated and confused.”
Brown J also stated: (Appeal Book vol.1 p.86)
“I have been critical of HACS workers for their conduct in running proceedings simultaneously in this Court and the Children’s Court. However, I am not critical of their involvement in the supervision of access. To the contrary, I find that…the worker who has supervised most contact, has demonstrated remarkable patience, commitment and tenacity in continuing to do so.”
Many of the written grounds of appeal of the wife and grandmother complained about the way in which HACS handled this matter. We agree with Brown J that the way in which HACS conducted or participated in proceedings both in the Children’s and Family Courts was most unsatisfactory. The situation that proceedings were commenced or continued in this Court at the same time as there were orders of the Children’s Court is a most unsatisfactory feature of the whole case. HACS, through its legal representatives, as well as the legal representatives of the other parties, failed in their duties to both Courts in neglecting to bring this aspect to the attention of the Courts, and, when this became an important issue in the contempt proceedings (see later), failed to provide her Honour with any assistance.
Nevertheless, we believe that Brown J was correct in her conclusion that HACS had appropriately fulfilled its child protection role.”

The Full Court concluded:
“We do not consider that there is any substance in any of the grandmother’s other grounds of appeal but for the sake of completeness we will refer to some of them.
We refuse the grandmother’s request for a certificate to the High Court (s.95(b) Family Law Act) or for any “compensation” to be paid to her and the wife by HACS, the husband or the Child Representative. We do not consider that Brown J breached any international conventions or treaties ratified by the Australian government. There is no evidence that the husband gained possession of M by using “professional and criminal methods” or that there was any collusion between the husband, HACS and the Separate Representative. There was no need for Brown J to refer the case to the federal police to investigate for treason.”
I have described the whole of the evidence, the references in judgments of other courts and the submissions concerning the role of the State of Victoria through HACS in order to provide the background to an attempt to identify the claims which Mrs Field seeks to make against the State of Victoria. As best I can isolate them they seem to be as follows:
(a)That the State of Victoria acted in breach of international treaties in supporting the claim of Mr Nelson to custody of Margaret, and that it so acted as a result of religious prejudice against Margaret because she is Protestant and the people employed by HACS are Roman Catholics.
(b)That the State of Victoria acted wrongly in participating in the proceedings in the Family Court when the proper forum for the proceedings was under state law in the Children’s Court.
(c)That the State of Victoria failed to look after the interests of Margaret and should account for its actions by being made a party to the proceedings.
An application for joinder should not be granted if the claim against the proposed party is hopeless because it fails to disclose a cause of action: Tytel Pty Ltd & Ors v ATC (1988) ATPR ¶ 40-847, at 49,118.
Insofar as the claim against the State of Victoria is that the State of Victoria failed to comply with international human rights instruments, the claim cannot succeed. This is for the reason previously discussed that such international instruments do not create enforceable legal obligations unless they have become part of domestic law by statutory enactment.
The claim referred to in para 114(b) above does not disclose any basis for liability known to the law. It is therefore not a proper foundation for the joinder of the State of Victoria to this proceeding.
The proposed case outlined in para 114(c) above is couched in the broadest and most indefinite terms. If there is any basis of liability in fact it is not expressed in a way which discloses a case against the State of Victoria which is known to the law. In some circumstances it is appropriate to permit joinder on the basis that the allegations will be refined in the course of interlocutory steps to be taken in the case. However, in the present case the notice of motion seeking joinder was filed on 5 June 1998. The original application had been filed on 14 January 1998 and the case was already well developed by June 1998. Indeed the hearing commenced on 17 August 1998. A significant discretionary factor in this case against joinder is that the application was made when the case was already well progressed and the case against the party sought to be joined was so poorly defined that it was not then convenient to allow the addition of a further party.
A further discretionary consideration against allowing joinder is that the very arguments which Mrs Field seeks to raise against the State of Victoria have already been dealt with and rejected by the Family Court both at first instance and on appeal. Thus, Mrs Field has already agitated the arguments before a court at first instance and on appeal and has had a ruling on those arguments. Her case stands in a different position to that of a litigant who seeks joinder in relation to a case which has not yet been the subject of any determination by a court. Further, it would be inconvenient to the existing parties to expose them to the risk of any costs of the trial of issues between Mrs Field and HACS which have no relevance to them.
The final consideration which makes it inconvenient to allow joinder of the State of Victoria is that there is a real doubt whether this Court has jurisdiction over the matters sought to be raised between Mrs Field and the State of Victoria.
The claim against the State of Victoria is not itself a federal matter. Although the basis of the claims is not precisely set out, it does not appear to involve any Commonwealth body or statute. Thus the only basis on which the Federal Court could exercise jurisdiction over the claims against the State of Victoria is by exercise of its accrued jurisdiction. In Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 294 Mason, Brennan and Deane JJ said:
“In this, as in other cases, the recurrent problem is to identify what it is that falls within the Federal Court’s accrued jurisdiction. The majority judgment in Fencott v. Muller (93) provides this assistance in reaching an answer:
“What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.”
Barwick C.J. in Philip Morris (94) had expressed a similar idea, stating that the exercise of the accrued jurisdiction “is discretionary and not mandatory”.”
In the claim against the Commission the issue is whether the Commission erred in refusing to investigate alleged violations of human rights. So far as is relevant to this case the only violations which the Commission may investigate are “acts or practices” which are defined as acts or practices engaged in by or on behalf of the Commonwealth or on the authority of the Commonwealth (s 4 Human Rights and Equal Opportunity Commission Act). In the circumstances of this case the Commission could not investigate the role of HACS. The role of HACS was not part of the matter to be investigated in the federal claim. The role of HACS is the issue to be investigated in the claim against the State of Victoria. While it is true that the role of HACS was undertaken generally in relation to the protection of Margaret during the custody and access battle, and the investigation which Mrs Field seeks that the Commission undertake is in relation to the events of the custody and access battle, each of the two claims relate to the actions of different bodies said to have acted in breach of the human rights of Margaret. Further, in the federal claim the Court is asked to enforce an obligation on the Commission to investigate, while in relation to the claim against the State of Victoria, the Court itself is asked to investigate the alleged violations. If the State of Victoria is joined as a party to this proceeding there is likely to be an argument that the claim against it is not part of the same controversy as the application against the Commission and the Commonwealth. The likelihood of such an argument, whether it succeeded or not, makes it inconvenient to join the State of Victoria to the present action. Such an argument would take time and would delay the conclusion of the existing proceeding.
Even if the Court has power to decide the case against the State of Victoria under the accrued jurisdiction, I would decline to exercise the jurisdiction as a matter of discretion for the same reasons as expressed above.
Thus, the motion, notice of which was filed by the applicant on 5 June 1998 is dismissed.
The orders of the Court will be that the application and the motion, notice of which was filed by the applicant on 5 June 1998, are dismissed. I will hear argument on the question of costs on a date to be fixed.

CONCLUSION

The foundation issue which has given rise to the plethora of litigation conducted by Mrs Field is the right to custody of and access to Margaret. The Family Court reached its conclusion on these matters at a trial on the merits and after an exhaustive hearing and careful and comprehensive consideration. This decision was upheld on appeal to the Full Court of the Family Court. The High Court refused special leave to appeal from the decision of the Full Court of the Family Court. No system can provide a fuller opportunity to explore the merits than this. However, the result is that Mrs Field is excluded from any contact with her grand-daughter. In concluding this judgment I observe that every avenue of appeal against the decision of the Family Court on the essential issue, namely, the custody of and access to Margaret, has been taken by Mrs Field. She must accept that this issue has been finally determined under the Australian legal system. The many legal proceedings she has instituted following the rejection of her appeal to the Full Court of the Family Court and the refusal of the application for special leave to appeal by the High Court have in essence attempted to reopen the determination made by the Family Court. The present proceedings are another example of this. In truth the legal system has been extraordinarily generous to Mrs Field in permitting her to re-agitate her same complaints many times over in different proceedings. It seems that she has continued to commence new proceedings out of her failure to accept the finality of the decision of the Family Court. It is important for Mrs Field to recognise that the fundamental issue decided by the Family Court concerning access to and custody of Margaret has been finally determined. The legal system is not able to assist Mrs Field to accept the difficult reality of that result. She may need to look elsewhere for any assistance in that task.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:
Dated: 15 December 1999

Counsel for the Applicant:

Applicant appeared in person

Solicitor for the Applicant:

Applicant appeared in person

Counsel for the First Respondent:

Solicitor for the First Respondent:

No appearance

Australian Government Solicitor

Counsel for the Second Respondent:

Mr R Frazetto

Solicitor for the Second Respondent:

Australian Government Solicitor

Date of Hearing:

17 August 1998, 28 June 1999

Last written submission filed:

13 July 1999

Date of Judgment:

15 December 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 10 OF 1998

BETWEEN:	MERET FIELD Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent
JUDGE:	NORTH J
DATE OF ORDER:	15 DECEMBER 1999
WHERE MADE:	MELBOURNE

JUDGE:	NORTH J
DATE:	15 DECEMBER 1999
PLACE:	MELBOURNE

Counsel for the Applicant:	Applicant appeared in person
Solicitor for the Applicant:	Applicant appeared in person
Counsel for the First Respondent: Solicitor for the First Respondent:	No appearance Australian Government Solicitor
Counsel for the Second Respondent:	Mr R Frazetto
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 1998, 28 June 1999
Last written submission filed:	13 July 1999
Date of Judgment:	15 December 1999