GKD v KB & Ors

[2004] HCATrans 189

[2004] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S385 of 2003

B e t w e e n -

GKD

Applicant

and

KB

First Respondent

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES

Third Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 2.15 PM

Copyright in the High Court of Australia

__________________

GKD appeared in person.

MR G.W. MOORE:   May it please the Court, I appear for the second and third respondents.  (instructed by Crown Solicitor for New South Wales)

GUMMOW J:   Well, you have an opportunity to speak to us for up to 20 minutes, if you wish to do so.

GKD:   Okay.

GUMMOW J:   We have read your written material and we are really inviting you to say anything you want to by way of expansion or explanation of the written material.

GKD:   Yes, your Honour.  If I could hand up a document for the Court’s information.  There is one for both of you actually.  Mr Moore has a copy of the – unfortunately I do not have no authorities.  I am not sure if it is a civil matter or a criminal matter.

GUMMOW J:   I think it is civil.

GKD:   Civil.  So that would be the Family Court then, your Honour?

GUMMOW J:   I beg your pardon?

GKD:   That would be the Family Court?

GUMMOW J:   Yes.

GKD:   Yes.  This is an appeal from the Family Court on an application by the State Government of inadequate provision.  In layman’s terms, they have sued us because we do not have much money, and I think that is unreasonable, your Honour.  There are some facts – I think this might be a hazard that they have used to evacuate the

premises in January 1998, and the full amended facts are that in March 1991 I raised my hand at KB and caused fear and was convicted of an assault and a domestic violence issue, so they would be the concerns that the Department has, your Honour, and I just believe it has been unreasonable to – actually, it is my understanding it is illegal to prosecute at State level on money.

GUMMOW J:   Yes, but the immediate point arises out of ‑ ‑ ‑

GKD:   Jurisdiction.

GUMMOW J:   ‑ ‑ ‑ yes, in the Full Court of the Family Court in an appeal you had there which was not in order and then it was sought to be reinstated – sought to reinstate it and Justice Coleman refused it, and that is what brings you here.

GKD:   Well, I brought these issues to the attention of the Family Court because I have not seen my children in three years and I thought because we did not have much money, I thought maybe I needed to go to the Family Court to try to get a contact order because I still love and miss my kids.  Unfortunately, the Family Court, for whatever reason, refused to hear the matter and the Children’s Court only heard the matter on inadequate provision. 

GUMMOW J:   There have been several applications in the Children’s Court, have there not?

GKD:   I cannot get the matter heard on the merits in the Children’s Court.  The information has been suppressed by the State Government, so I assume that that information is at best misleading, probably fabricated to cause a false alarm. 

GUMMOW J:   Now, do you have your application book there, a copy of it?

GKD:   Yes.

GUMMOW J:   Could you just look at page 22?

GKD:   Yes, your Honour, yes.

GUMMOW J:   You see, I want to focus you on what is being said against you.  I know it is very technical, but you see 3.2 there?

GKD:   Section 69ZK?

GUMMOW J:   Yes.  Just read that to yourself, take a minute.  That is the heart of the matter that is put against you, really.

GKD:   Yes.

GUMMOW J:   And it is a technical, legal jurisdictional question.

GKD:   Yes.  On the issue of child maintenance, I have been to the Child Support Agency and they are not interested in me paying child maintenance.  I have put in an application to pay child maintenance but they have not actioned that application. 

GUMMOW J:   What is being said there really is that the Family Court is the wrong place to go.

GKD:   If it is a civil jurisdiction, it is the Family Court, and on the grounds of abuse ‑ ‑ ‑

GUMMOW J:   Just a minute.  Because of this special provision in the Family Law Act, that is what is being said.

GKD:   I guess that is a legal technicality ‑ ‑ ‑

GUMMOW J:   It is.

GKD:   ‑ ‑ ‑ to avoid going into the merits of it, because it is probably my understanding that the Family Court had a hand in the removal of the children, if it is civil and they accept it on a civil basis.

GUMMOW J:   Is there anything more you want to say?

GKD:   No, your Honour.

GUMMOW J:   Yes, Mr Moore.

MR MOORE:   Your Honour, the application deals with an application from Justice Coleman to refuse to reinstate the ‑ ‑ ‑

GUMMOW J:   Are we right in thinking that the heart of it from your point of view is 3.2 on 22?

MR MOORE:   Yes, your Honour.  In addition, there have been a number of applications made to the Children’s Court and in the application book at paragraph 2.15.

GUMMOW J:   Just a moment.  Yes.

MR MOORE:   So that the applicant’s remedy is to go back to the Children’s Court.

GUMMOW J:   Yes.  Well, he says, of course – he says he cannot get the Children’s Court to give him leave to get into the merits.

MR MOORE:   That is right, your Honour.  There is a hurdle he has to jump and that is leave will only be granted if there is a significant change in a relevant circumstance, and so far he has failed at that hurdle.  Although, your Honour, the latest appeal that is referred to at 2.15, one of 19 August 2003, Mr D has appealed to the District Court in respect of that.  That has yet to be finalised, although there has been a subsequent application to the Children’s Court which was refused.

GUMMOW J:   Say that again.

MR MOORE:   Notwithstanding the appeal to the District Court which is still on foot, there has been a subsequent application to the Children’s Court again, and that has also been refused.

GUMMOW J:   Yes, thank you.  Yes, did you want to say anything in response to that?

GKD:   Yes, your Honour.  There is a section under the Freedom of Information Act that says the only place that the merits of the documentation they hold can be canvassed is in the Children’s Court.  As I said, they have never entered into the evidence and have made orders purely and solely on the basis of money.  If the Court cannot assist me, I would be asking that there be some recommendation made that some level of contact be made to my children because it is only about money.  Thank you, your Honour.

GUMMOW J:   This application to us arises in a particular situation which has been outlined to us by the applicant, but for immediate purposes the application turns upon a question of statutory construction going to the jurisdiction of the Family Court of Australia.  In that respect, we see no grounds of error on the part of the Family Court.  For that reason, the application must be refused.

MR MOORE:   The respondent seeks costs, your Honour.

GUMMOW J:   Yes, well that is inevitable.  Refused with costs.  I should have indicated that the first respondent is not interested in this matter and does not wish to appear at the hearing.  That appears from a certificate supplied by the Deputy Registrar.

GKD:   Sorry, your Honour, if I could just on that point that that has caused the conflict I thought for my wife’s interest, ie, the children ‑ ‑ ‑

GUMMOW J:   Yes, we understand that.

GKD:   But it causes a conflict because she is not interested so there is a separation somewhere.

AT 2.25 PM THE MATTER WAS CONCLUDED