Hinchcliffe - Ex parte Burton

[2001] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M18 of 2001

In the matter of -

An application for Writs of Certiorari and Prohibition against HIS HONOUR JUSTICE BURTON – FAMILY COURT OF AUSTRALIA

First Respondent

BRENTON WAYNE FOALE and
TIMOTHY J. MULVANY (SEPARATE REPRESENTATIVE)

Second Respondents

Ex parte –

AMANDA JOY HINCHCLIFFE

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 26 APRIL 2001, AT 2.17 PM

Copyright in the High Court of Australia

HIS HONOUR:   Yes, you are Mr Hinchcliffe, are you?

MR J. HINCHCLIFFE:   Yes, sir.

HIS HONOUR:   Yes, and your wife is present in Court and I assume that you are content, are you, Mrs Hinchcliffe, that your husband should speak this afternoon?

MRS A.J. HINCHCLIFFE:   Yes, I am.

HIS HONOUR:   Yes, thank you very much.  Yes, Mr Hinchcliffe.  Now, before we begin I should tell you that I have read the papers and you may, therefore, assume that I am familiar with what is in the papers.

MR HINCHCLIFFE:   Yes, your Honour.  I think if I could just cover a couple of quick points.  I was informed by a person who I believe to be reliable, less than two weeks ago, that a letter was originally written from Mr Foale’s solicitors to Legal Aid to ensure that my wife did not have adequate funding made available to her and I have been informed to get a copy of this book, which was sent to me by Rosemary Hunter from Sydney, “Legal Services in Family Law”.  It is from the Justice Research Centre and I apologise, I have not had time to get photocopies made.

On page 271 at point 612 it states that there was a practice among certain solicitors of contacting a Legal Aid Commission in attempts to get the other party’s grant of aid terminated and solicitors did admit that this is, in fact, a current practice.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   In my wife’s situation the children were “snatched”, I think is the legal term, to manipulate, in her opinion, the course of conduct.  Her former husband is, we believe, still suffering mental and emotional problems which has caused a great deal of trouble to my wife and we honestly believe that it is causing a symptom known to be either parental alienation syndrome or Stockholm syndrome.  Now, those types of illnesses unfortunately cannot be diagnosed by a court counsellor in the Family Court as the court counsellors do not conduct any forensic examinations or investigations.  This is confirmed in my underlined section of the Chief Justice of the Family Court’s comments in exhibit 10.

Now, unfortunately the Family Court, its officers and the court counsellors, have been aware of the existence of these types of emotional abuses since at least 1989 when Dr Kenneth Byrne published his article in the Australian Family Lawyer, “Brainwashing in Custody Cases:  The Parental Alienation Syndrome”.  Now, you have a situation with this type of treatment of children where it is virtually impossible to detect unless the person who is conducting a forensic and clinical examination interviews the children and all the parties concerned jointly and separately.  This has never happened.

The children are also being physically abused and the police and Department of Human Services refuse to take any action by this statement that as the final hearing has taken place they are powerless to act and they do not want to interfere with the Family Law Act, under which they have no jurisdiction. 

HIS HONOUR:   Now, can I see how this is said to relate to the relief which your wife comes to this Court seeking.  The application, as I understand it, is, first, to stop any further proceedings in an identified Family Law matter and, secondly, to quash orders that were made on 30 September.

MR HINCHCLIFFE:   That is right, sir.

HIS HONOUR:   Now, the order of 30 September with which this second application is concerned is, is it not, exhibit 11 to the affidavit?

MR HINCHCLIFFE:   Yes, sir.

HIS HONOUR:   Now, just pausing for a moment at exhibit 11, which I rather suspect I have managed to leave on my desk in chambers ‑ ‑ ‑

MR HINCHCLIFFE:   I may have a spare copy here, sir.

HIS HONOUR:   No, do not worry.  I will get the file copy sent into me.  That order provided a number of things, did it not, firstly, about what was to happen to the schooling of the two children in 1998 and 1999, that is, paragraphs (1) and (2)?

MR HINCHCLIFFE:   Yes.

HIS HONOUR:   Now, all that is passed, 1998 and 1999 long since gone.  Those two orders are at an end, are they not?  Their effect is spent.

MR HINCHCLIFFE:   Yes, they are.  I believe why the matter needs to be revisited, if I could answer it in my way, and I am trying to make sense:  in point (8) and court notes at the bottom, to me it clearly demonstrates that his Honour Justice Burton was not prepared to consider any of my wife’s submission; he refused to read and understand her affidavit; and, furthermore, she was incapable of speaking for herself.

HIS HONOUR:   For the moment let us proceed on the basis that there is some evidence which would show that your wife was not in a position where she could do justice to her case on 30 September.  Let us for the moment assume that fact.

MR HINCHCLIFFE:   Yes, sir.  Thank you.

HIS HONOUR:   If we assume that fact, what is it that then is to be done under the order of 30 September which still has some operative effect today?

MR HINCHCLIFFE:   Well, my wife was refused a hearing on the 16th day of November 1998 as Legal Aid were considering funding and then refused it and the hearing was unable to go ahead and his Honour Justice Burton stated that:

THE COURT NOTES that these orders are made upon the understanding that the order for residence of the said children with the wife from Thursday until Sunday each week made by this Court in January 1997 have not been exercised since September 1997.

HIS HONOUR:   Again, let us assume simply for the purposes of argument that that statement is entirely wrong.  Let us assume that the judge was wholly wrong in saying that.

MR HINCHCLIFFE:   Yes.

HIS HONOUR:   What is it under the order of 30 September that is still affecting what people can and cannot do?

MR HINCHCLIFFE:   Well, this order led to a refusal by the Legal Aid Commission to refuse to allow funding for the matter to proceed.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   My wife was forced under extreme duress to sign consent orders which are not in the best interests of the children.  The husband has refused since 1997, when requested continually by the Department of Human Services, to have the children counselled.  The husband has continued to stalk – since that time he has raped my wife on two occasions since that time.  He has abused her horribly and is about to charged under the Victims of Crime Tribunal.  But the most important thing is that the children are in urgent and critical need of psychiatric intervention of a clinical and forensic nature because of the effects of this type of emotional abuse and also to prevent further physical abuse by the husband which he is ‑ ‑ ‑

HIS HONOUR:   Now, the proceedings which your wife seeks to start in this Court, in which she seeks prohibition and certiorari, are proceedings that are different from appeal proceedings.

MR HINCHCLIFFE:   Yes.

HIS HONOUR:   This Court does not sit as the Family Court.  It does not in this sort of process sit on appeal from the Family Court.  What it does is by these two forms of order, prohibition and certiorari, ensure in appropriate cases that orders that are made by the Family Court are made within the jurisdiction of the Family Court.

MR HINCHCLIFFE:   That is right, sir.

HIS HONOUR:   Now, this Court will not grant such orders in respect of things that have happened in the Family Court as long ago as 1997, 1998 unless there is something that is still operating, something that is still affecting what the parties can or cannot do, and that is why I need you to focus for the moment on ‑ ‑ ‑

MR HINCHCLIFFE:   All right, okay.  Right.

HIS HONOUR:   ‑ ‑ ‑ what is it under the order of 30 September 1998 that still operates.

MR HINCHCLIFFE:   Right, okay.

HIS HONOUR:   Orders (1) and (2) seem to me to be concluded and spent ‑ ‑ ‑

MR HINCHCLIFFE:   Okay.  Order (3), right, where I am not to attend – though I never have or attempted to – at the school.  Order (4):

That save and except for the husband’s consent in writing, tendered personally by the husband to the relevant school ‑ ‑ ‑

HIS HONOUR:   He is to collect and deliver.

MR HINCHCLIFFE:   Yes, that is – he is covering his own tracks with his abuse of the children ‑ ‑ ‑

HIS HONOUR:   Look, Mr Hinchcliffe, maybe, maybe not.  I am not getting into this.  I want you to focus on the question which I am asking you to answer.  What is it under ‑ ‑ ‑

MR HINCHCLIFFE:   Well, order ‑ ‑ ‑

HIS HONOUR:   No, just a moment.

MR HINCHCLIFFE:   Okay.

HIS HONOUR:   What is it under this order that still operates?

MR HINCHCLIFFE:   Right.  Point (6):

until further order the wife not attend at any pre‑school or primary school at which either of the said children may attend at from time to time without the prior written consent of the husband except at such times as the said children are not in attendance at the school.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   Now, my wife is unable to speak with her former husband and is, therefore, unable to attend at the school.  Every time she attempts to speak with her former husband she is threatened and abused.  Now, that is an onerous and unjust condition, particularly when Justice Burton appears to have failed to have accepted the affidavit evidence of my wife, particularly as he would not let me speak for her, and this is highlighted in the court notes and point (8).  Now, she is not able to have me represent her in the Family Court.  The court will not allow an application to be made in that manner at this point in time.

HIS HONOUR:   Yes.  Are there any other paragraphs of this order which still are operating today that are affecting what people can do or not do today?

MR HINCHCLIFFE:   Right, okay:

IT IS DIRECTED

(9)   That the said John Hinchcliffe only communicate with the Child Representative or his agents and the solicitors for the husband or their agents in writing and not by any verbal communication at all.

That is still operating.  It was actually stated that I was not to even serve papers on their offices for my wife, yet they were sending extremely threatening and abusive letters from my wife’s former husband’s solicitor.  Now, that effectively means that I cannot approach their offices to deliver any documentation.  My wife is not convinced that her former husband is paying the school fees, as mentioned in point (5), but is unable to confirm or deny this.

He has declared bankruptcy previously to avoid debts and try to have them placed against my wife.  He has caused my wife to be hospitalised on two occasions.  My wife is now on medication which has to be approved each time her script is issued by the National Health Service in Canberra and has been informed she will be on that medication for the rest of her life as a result of his actions.  Apart from orders (1) and (2), I believe it is unreasonable that the other orders be allowed to stand.

HIS HONOUR:   Now, why should the wisdom or lack of wisdom of allowing those orders to stand not be left for the Family Court to decide either on appeal from the order of Justice Burton or, in the case of orders like order (6), on application to a single judge of that court to vary them?

MR HINCHCLIFFE:   I have sat in Family Court proceedings to observe how things are happening in the Family Court on many occasions, sir, on matters which are not related to or anything to do with us.  I have also studied paperwork and documents coming out of the Family Court and I believe it is highlighted by the fact that if you refer to exhibit AJH–15, “Submission of the Family Court of Australia to the Interim Report of the Family Law Council:  Penalties and Enforcement” May 1998:

‘The feelings generated in Family Law disputes are particularly intense.  If an order made by the Court is disobeyed and contempt proceedings ensue, these are likely to increase the hostility already generated between the spouses.  If the Court imposes a harsh sanction on one of them, he or she will resent it heavily:  if it adopts a more lenient approach, in the hope that one experience of contempt proceedings will persuade the respondent spouse to comply in the future, the applicant spouse is likely to be angry, both at the respondent and the Court.  A feeling that the Court is in a ‘no win’ situation has been reinforced in recent times by the emergence of numerous groups and associations, which engage themselves in campaigns on specific aspects of enforcement of orders within Family law; in particular, with the enforcement of orders.’

Sir, I can produce a dozen witnesses, apart from myself, who have sought to enforce contact orders as a non‑residential parent in the Family Court.  In my case and every other one of those people we have all been hit with extreme financial cost penalties and refusals to hear any evidence, which is in actual breach of the Act.  Now, I was hit with $3,600 by Justice Mushin on 18 March 1999 after I had not seen my children according to the court orders for two years ‑ ‑ ‑

HIS HONOUR:   Mr Hinchcliffe, this seems a long way from your wife’s case, which is what you are here to argue.

MR HINCHCLIFFE:   What I am trying to impress upon you, sir, is every time a non‑custodial parent makes application to enforce contact orders in the Family Court which are not being complied with by the residential party, in the majority of cases the parties who make application will have their cases dismissed without the justice even hearing any evidence.  I know one person who was offered a term of imprisonment for making application and I know another person who has had costs of $45,000 awarded against him when he is penniless.

The court seems to apply enforcement orders extraordinarily – it is not an enforcement.  The court seems to apply a costs order against a person as a penalty for making an application to see their own children.  Now, my wife was supposed to be seeing her daughters from Thursday until Sunday inclusive of each week.  On 17 September 1997 her former husband cancelled the contact and has refused to comply with every order since that time.  This is following snatching the children back in 1996.  Now, this is a common practice in Family Court proceedings and it is also raised in this book, and the children are at risk of severe emotional abuse.

Now, the Family Court is unlikely to listen to an application to, one, appeal these orders or, two, overturn them, and the Family Court I have witnessed now on seven applications on seven different days refused to appoint a clinical and forensic expert to investigate the wellbeing and the best interests of the health and welfare of the children.  Now, it is getting to a point where children are committing youth suicide as a result of this type of emotional abuse.  People like my wife are being driven to hospitalisation and in the past my wife has attempted suicide, which, if I had not been there, would have succeeded, as a result of a failure of the court to act in the best interests of the children and to protect her.

She even previously made an application for an injunction restraining her husband from stalking, threatening her, harassing, et cetera, and the justice threw it ought.  He said, “You had better go and see a magistrate.”  Then the magistrate said, “No, I don’t want to hear it because I don’t want to interfere in Family Law matters.”  So my wife was hospitalised twice and raped a few times and she has been stalked and scared out of her brain to the extent that we had to move from the Melbourne metropolitan area to Horsham, 300 kilometres away, so that she could start to feel a degree of security in that her former husband was not driving past our home on a daily basis, which at times he was when we lived in Diamond Creek.  I have witnessed him myself.

HIS HONOUR:   Again, Mr Hinchcliffe, we are coming a long way from ‑ ‑ ‑

MR HINCHCLIFFE:   Yes, but ‑ ‑ ‑

HIS HONOUR:   Just a moment, will you?

MR HINCHCLIFFE:   Okay.

HIS HONOUR:   We are a coming a long way from the immediate application, which is an application to commence proceedings for prohibition and certiorari directed, as I understand, to quashing the order of 30 September 1998 and prohibiting further proceedings.  Why should I make such an order?

MR HINCHCLIFFE:   Well, I believe it is all in the court notes in the bottom of the page under point (9) below Registrar Harold’s stamp:

THE COURT NOTES that these orders are made upon the understanding that the order for residence of the said children with the wife from Thursday until Sunday each week made by this Court in January 1997 have not been exercised since September 1997.

And, secondly, point (8):

That the return date of the wife’s Form 8

application –

of the 4th of November 1998 be vacated and that matter be adjourned to the review to be conducted by a Judge on the 16th day of November 1998.

That review was prevented from proceeding, and the fact that Justice Burton refused to accept any of my wife’s evidence has allowed those children to be continually maltreated.  Now, I have two separate exhibits.  Exhibit 12 right after the orders, attachment F.  It is just a single page of my wife’s affidavit:

12.   From the 17th of September 1997, until December 1997 the husband refused to allow any form of contact or residency of the children with the wife.

And it goes on from there.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   It is a consistent form of conduct and behaviour since my wife separated with her husband in November 1996 that has been continual.  My wife’s psychologist has put it in the terms that he has an irrational jealousy and is hell bent on retribution and so he has used his legal people to abuse the system.  The other thing that disturbs me too is that on 30 September 1998 my wife’s former husband was represented by a barrister who has received a little bit of prominence in the media recently, Mr Testart, and I believe that all of his evidence on that day should be struck out on the basis of the fact that he is a person who I do not believe should be allowed to stand as a barrister and represent the law being an undischarged bankrupt with tax debts of such a large amount of money.

The other concerning thing is that the children’s separate representative, Mr Mulvaney, has failed to conduct any full and independent investigation into the best interests and welfare of the children at all points as there is an unspoken rule within the Family Court circles that the Family Court report will be the children’s separate representatives guide as to the outcome of the proceedings.

The other matter which is very concerning too, sir, is attached to exhibit 8.  It is case closure summary, which is three of the last four pages, from the Department of Human Services at Box Hill.  On 17 September 1997 allegations were made that I, myself, had assaulted my wife’s elder daughter ‑ ‑ ‑

HIS HONOUR:   Well, again, how does this relate to the application that your wife makes today in this Court?

MR HINCHCLIFFE:   Well, sir, it relates in that the court refused to hear her as she was incapable of speaking for herself and needed to speak through me.  She had been denied any and all Legal Aid funding.  I have become her carer.  We only have an income of a pension and, therefore, are unable on, I think, our combined pensions of something in the order of $16,800 a year, we are unable to afford the cost of employing or gaining the services of any legal representative.

On that basis, the fact that my wife was not allowed to be heard on 30 September 1998, the orders are unreasonable and unjust due to the fact that the justice refused to hear any evidence and failed, I think is probably the correct terminology – I apologise if I use the wrong word, sir – but he failed to read and accept any of my wife’s affidavit material, of which there was some 30‑odd pages.  Now, that material even stated that the children of the marriage required urgent counselling and it was contained in a letter attached to the affidavit from the Department of Human Services.  Those children have never been counselled or evaluated.

I have approached five separate solicitors and each solicitor has said to me that even though we may be able to get Legal Aid funding at the moment Legal Aid would not allow the matter of 30 September 1998 to be reopened or heard and, therefore, it is a fruitless exercise making any application whatsoever.  My wife has not seen her daughters since September last year when access or contact was once again refused.  She has not had any telephone contact since January this year – sorry, November last year due to the fact that her daughter who is about to turn eight was talking to her on the phone and in the background my wife and also – sorry, my wife was being abused by her former husband who was screaming and shouting with his current girlfriend threats, abuse and harassment and inciting this young girl, who is only about turn eight now, to start to abuse, threaten and harass my wife.

Following that phone call I spoke with my wife with her psychologist, who said, “You must not talk on the telephone with your daughter if this is the way that things are going to continue.  It is not in your best interests and it is extremely detrimental for your children.”  Where the matter is at the Family Court at the moment, the Family Court will not entertain any corrective issues and they have demonstrated this, as I tried to make application recently in my own matter as I had not seen my children for three years, and the justice – sorry, the registrar walked in and said, “Yes” ‑ ‑ ‑

HIS HONOUR:   Again, telling me about the state of your matter does not seem to me, at least, to be relevant to your wife.

MR HINCHCLIFFE:   Okay.  I have witnessed on so many occasions, your Honour, the fact that this is a situation where the Family Court will not entertain allowing my wife to be represented by myself to help her.  She is not capable of conducting any hearing herself.  She is intimidated extremely just by sitting here, but she would be unable to talk for herself.

HIS HONOUR:   Is there anything else you wish to add in support of the application?

MR HINCHCLIFFE:   I think the most important thing, sir, is to state and restate that in my wife’s affidavit to the Family Court on 30 September 1998 she has – which is exhibit 8.  She has in that affidavit, and all affidavits earlier, described the symptoms of child emotional abuse and physical abuse.  She, like myself, was not aware of the names of the actual symptoms until this last couple of months when we found it by accident.  Now, the separate representative has been aware of parental alienation syndrome since 1989.  In fact, he has published an article, which I have been told about, in the Bulletin magazine – I think it was May last year, although I have been unable to locate it – mentioning the dangers of parental alienation syndrome.

Now, we have a situation because none of my wife’s affidavit material has been accepted or possibly not even read by his Honour, because no counselling for the children has ever been ordered, which was requested at the same time, and because no counselling has ever been ordered since that time the children’s health and wellbeing is at extreme risk and the reason that I am here with my wife today is for the health and wellbeing of the children.  If you would excuse me one moment, sir.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   My wife just wants to reread the orders.  In her affidavit, which is exhibit 8, she has gone through step by step and stated the conduct of the former husband.  The fact that the former husband was currently being investigated by Knox Community Policing Squad and the Department of Human Services over assaults of the children of the marriage, that is, my wife’s daughters with him, and also his former girlfriend de facto and her two‑year‑old son, and that is in point 12/3.  In point 12/4:

The husband’s former girlfriend/defacto has been advised by Croydon Police and Knox CPS to take out an Intervention Order against –

my wife’s former husband -

after the assaults and has also been threatened, harassed and intimidated by the husband and his mother.

We only found out about that when I received a telephone call whilst my wife was in hospital the second time where she spent four weeks at Monash Medical Centre’s Mother and Baby Psychiatric Unit in August 1998 when the former girlfriend de facto rang me one evening after I had got home, but Justice Burton appears to have disregarded every shred of the evidence in the affidavit entirely, because if you look at attachment A, you look at attachment B, attachment C – I have just highlighted certain lines – attachment D, attachment E, attachment F, then you look at the case closure summary following that and the letter from the Department of Human Services.

Now, I do not know how Justice Burton could have made such orders if he had considered any of the evidence contained in that affidavit.  Now, he has stated he had read the affidavit material when he walked into the court.  Now, all of this material can be corroborated, but he has refused to accept any of it.  Now, I believe that is stating basically that my wife is a person under a disability, which I accept, but he is not affording her the right of a fair and impartial hearing, and this comes under the Universal Declaration Of Human Rights and it also comes under the statements of the – The Beijing Statement of Principles, and by not being heard my wife was not granted any rights at all.

Now, the fact that since my wife separated and divorced her former husband she has had less than six months court‑ordered contact or her court‑ordered contact for less than six months during the entire period of that time.  It is five years.  Those children are getting worse and worse and worse.  My wife has just given me a note here in relation to the court notes on the bottom of the second page of the court orders, “As I was denied access, not unexercised, these orders should be discharged.”

What she is saying there is the only two parts of the orders which should be allowed to stand are orders (1) and (2).  They should be allowed to stand.  At least we know at this point in time that the children have to stay in the school.  In the year before the children started – these orders came into existence, the children attended no less than five different child care centres and creches ‑ ‑ ‑

HIS HONOUR:   I saw the evidence of that in the material, yes.

MR HINCHCLIFFE:   And I think the fact that Justice Burton was unable to read or understand or cope with that evidence is very distressing to my wife.  It is a situation where Justice Burton should have, in my opinion, ordered a court‑appointed expert to assess the best interests of the children.

HIS HONOUR:   That is, I think, a point you have already made previously, is it not?

MR HINCHCLIFFE:   Yes.  I am just referring to point 10, “the Universal Declaration of Human Rights”.  I will not bore you with the content of that.  You have read it.  Point 11, “Convention on the Rights of the Child”.  And point 12, judicial independence – I am sorry, “The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region”.  It concerns me – well, it concerns my wife even more – that the Family Court seems to ignore the Universal Declaration of Human Rights, the Convention on the Rights of the Child, and in doing so is failing to allow my wife to present her case to have it independently and impartially heard, which is a failure, to me, of judicial independence, sir.

I feel very strongly that I will make this statement.  I know the Family Court has become the busiest court in Australia but I believe the Family Court now categorises things far too often and they say, “Right, 95 per cent cases are going to finish in consent orders.”  That is confirmed in this book.  It is confirmed in the Australian Law Reform Commission Reports.  The judges are too busy.  Okay, but where there is a risk of child abuse and harm to the children on health and emotional welfare I really think it is very, very critical that something needs to be done.

Legal Aid will not fund a final hearing.  They have said that to me outright.  Legal Aid have said there is no way the Family Court will allow me to represent my wife in the Family Court.  That has been repeated to me by multiple solicitors who just said, “Look, it is a waste of time going to the Family Court.  You have got a choice:  go to the High Court or go to the media.”  And I am not using that as a threat, sir.  I am saying that is the comment which has been made to me.

It is a situation where the orders of 30 September 1998 were totally inappropriate and I believe they need to be set aside, an expert must be appointed to consider the best interests of the children because the best interests of the children are not being considered by the Family Court system unfortunately, and I will say again I do realise that the Family Court is under immense pressure, sir, and I know that they are strained in every corner, but at the same time I have then read articles by the Chief Justice saying, “We don’t like appointing court experts.”

Now, as a result of everything that has happened, I no longer work.  I used to earn between 50,000 and $100,000 a year and have a company car and fringe benefits.  My wife used to earn a minimum $30,000 a year.  We now survive on about $16,000.  We cannot afford to go out and start appealing in the Family Court.  The Family Court will not hear me.  Therefore, I feel the only other way we can handle it is by coming to this Court and requesting that the Court grant my wife’s application as there are many people who are in the same and similar circumstances and in these circumstances I believe it is very, very essential as it is in the public interests that situations like this must not be allowed to occur.

I could state outright, sir, that if my wife lodged an application in the Family Court tomorrow we would arrive at the court, the justice would adjourn the application to have me represent her, or the registrar.  We would then have a situation where the application for a final hearing would be brought forward immediately.  The final hearing would be set down and there would still be adjourning of hearing the application for me to represent my wife and unfortunately the Family Court does not like appointing an expert.  We cannot go and sell our car or anything like that. 

We do not have assets enough to do it, to spend 1,500 to $2,500 to pay for an expert.

I was reading an article on another matter last night where a lady had been a victim of stalking and the police refused to act – and it is another State – and she said unfortunately there is two classes of law in Australia:  one for the rich and one for the poor.  I am poor.  She has just come out of spending six months in hospital after an assault following stalking of three years.  That is why I believe that this whole situation – we have got a situation where the Family Court does not want to make orders which might upset the Magistrates Court in relation to stalking, harassment, rape, et cetera; where the Magistrates Court does not want to issue intervention orders to protect people.  We have then got the Victoria Police and the Department of Human Services which are saying, “No, the final hearing has taken place”, but not final hearing has ever happened.

If a final hearing was to have happened and all matters could have been brought out, the matter could have been independently evaluated by fair‑minded people, but no final hearing can take place at this point in time.

HIS HONOUR:   Yes.

MR HINCHCLIFFE:   So unfortunately it is a catch‑22 situation.  It is a dog chasing its tail in a circle.  I could present a lot more but I think I have probably said enough.

HIS HONOUR:   Yes, thank you, Mr Hinchcliffe.

MR HINCHCLIFFE:   Thank you very much.

HIS HONOUR:   Amanda Joy Hinchcliffe seeks an order nisi for prohibition and certiorari.  She seeks prohibition directed to the Honourable Justice Burton, of the Family Court of Australia, prohibiting further proceedings in a matter numbered ML 11573 of 1996 in that court.  She seeks certiorari to quash the decision and order made by Justice Burton on 30 September 1998 and, because the application for order nisi is made well outside the time fixed by the Rules, she seeks also an extension of time for making her application.

The draft order nisi that has been filed specifies five grounds on which the respondents are to be called on to show cause.  They are:

“1.      The Family Court of Australia have acted in a manner

detrimental to the fair and equitable administration of the full meaning of the Family Law Act 1975.

2.        The Family Court of Australia and others have acted in a

discriminatory manner to deny the applicant’s legal right to representation, by a next friend.

3.        The Family Court of Australia have refused to hear and

consider all relevant information to the detriment of the best interests of the applicant and the children of her former marriage.

4.        The Family Court of Australia and others have acted in a

manner to prevent a full and final hearing of the above matters, to the detriment of the best interests of the applicant and the best interests of the children.

5.        That the Consent Orders of the Family Court of Australia

made under extreme duress by the prosecutor/applicant subsequent to 30th September 1998, be set aside, pending determination by the Court of the matters in question.”

Although the oral argument, presented on the applicant’s behalf by her husband, has ranged over a wide spectrum of aspects of the litigation in the Family Court in which his wife has been engaged, it is necessary to bear in mind the exact nature of the orders which are sought in this Court and the basis on which those orders are sought.

At the heart of the complaint which the applicant now seeks to make is the refusal by Justice Burton to allow her husband (her then fiancé) to appear on her behalf at the hearing of an application for various orders concerning the children of her former marriage to Brenton Foale.  Those proceedings gave rise to the order made on 30 September 1998 which is the subject of her application for order nisi for certiorari.  The exact nature of the application that was before the Family Court on 30 September 1998 is not clear, the affidavit in this Court not having exhibited the application in evidence.  In the end, however, that is not important to the disposition of the application to this Court.  What is said to be important is that the proceedings in the Family Court went awry on 30 September 1998 and that this has affected all that has been in that court after that date, including the unspecified orders to which the draft grounds of the order nisi refer as orders to which Mrs Hinchcliffe consented, as it is said, “under extreme duress”.

The refusal to permit Mr Hinchcliffe to appear for Mrs Hinchcliffe at the proceedings on 30 September 1998 is not recorded in any order of the Family Court that has been produced in evidence and there is now no record, whether transcribed or otherwise, of the proceedings in which the application was refused.  So far as the order of 30 September 1998 reveals, Mrs Hinchcliffe appeared on her own behalf in those proceedings.

It is as well to set out in some detail what that order of 30 September provided.  It ordered:

“(1)     That the child of the marriage ELISE COURTNEY FOALE

born on the 11th day of May 1993:

(a)     attend Brentwood Pre‑School at Wheelers Hill in the

State of Victoria for the remainder of the school year in 1998; and

(b)     commence attending Glen Waverley South Primary

School at the beginning of the academic year in 1999.

(2)      That the younger child of the marriage MEAGHAN LOUISE

FOALE born on the 17th day of August 1994:

(a)     attend Wheelers Hill Family Centre for the balance of

the school year in 1998; and

(b)     attend Brentwood Pre‑School at Wheelers Hill in the

State of Victoria commencing the start of the academic year in 1999.

(3)      That the wife do all things necessary to ensure that Mr John

Hinchcliffe not attend at or in the vicinity of any pre‑school or primary School at which either of the said children may attend at from time to time or to make any contact with, by phone or in writing, any such schooling establishments.

(4)      That save and except for the husband’s consent in writing,

tendered personally by the husband to the relevant school, the said children are to be delivered to pre‑school/primary school and collected from the said schooling establishment only by the husband.

(5)      That the husband be responsible for all fees payable to the

schools referred to in these orders and that he not change the said children’s pre‑school or school from those set out in these orders, without the written consent of the wife or an order of this Court.

(6)      That until further order the wife not attend at any pre‑school

or primary school at which either of the said children may attend at from time to time without the prior written consent of the husband except at such times as the said children are not in attendance at the school.

(7)      That leave be granted to all parties to inspect such documents

as have been produced under subpoena to date, save and except any matter for which privilege is claimed.

(8)      That the return date of the wife’s Form 8 of the 4th of

November 1998 be vacated and that matter be adjourned to the review to be conducted by a Judge on the 16th day of November 1998.”

The order went on to direct:

“(9)     That the said John Hinchcliffe only communicate with the

Child Representative or his agents and the solicitors for the husband or their agents in writing and not by any verbal communication at all.”

Finally, the order recorded that:

“THE COURT NOTES that these orders are made upon the understanding that the order for residence of the said children with the wife from Thursday until Sunday each week made by this Court in January 1997 have not been exercised since September 1997.”

It is said that this note did not accurately reflect the position that obtained in September 1998 at the time of the making of the order which it is now sought to impugn.  As I understand it, it is said that the wife, that is, Mrs Hinchcliffe, had sought to exercise the benefit of the order for residence but had been precluded from doing so by the conduct of her former husband.

It is important to notice that there was no appeal brought against the orders of 30 September 1998.  No doubt the time for appeal has now long since expired.  Ordinarily, if it is sought to challenge the merits of an order such as that which was made on 30 September 1998, as opposed to raising questions of jurisdictional error or other grounds for judicial review, the merits must be challenged by appeal.  In particular, whether the orders that were made take sufficient account of the best interests of the children concerned or take sufficient account of evidence given by a party to the proceedings of symptoms which are said to be now properly recognised as revealing a syndrome called parental alienation syndrome are matters for appeal, not proceedings of the kind which it is now sought to institute in this Court.  As I have noticed earlier, appeal was not brought from the orders of 30 September 1998.

It is important also to notice some other aspects of the order of 30 September.  The operation of paragraphs (1) and (2) of that order is now spent.  They dealt with what should happen for the education of the children in the years 1998 and 1999.  Paragraphs (3) to (6) and paragraph (9), and perhaps paragraph (7), still have some continued operation, but it is then important to recognise that the orders that have continuing operation are not orders representing a final disposition of the matters with which they deal but are in the nature of interlocutory orders.  In consequence, any party affected by them may apply to the Family Court for their variation or discharge.

No doubt in anticipation of such a point, Mr Hinchcliffe in the course of his oral submissions sought to make good the general proposition that I should proceed on the assumption that he will not be given permission to appear on his wife’s behalf in any proceedings in the Family Court and that unless he can do that, there is at least no practical way in which that court can be approached on Mrs Hinchcliffe’s behalf to obtain variation or discharge of the orders of 30 September 1998.

I should add that the oral submissions that were made tended, at times at least, to suggest, however, that the concern which Mrs Hinchcliffe has for her children is much more deep‑seated than a concern about the particular operation of the paragraphs of the order of 30 September 1998 which I have identified as having continuing operation.  Her concern, as I would understand it, is at the deeper level of a concern about whether present residence arrangements and present contact arrangements in respect of the children are in the best interests of those children.

Even if, as Mrs Hinchcliffe seeks to contend, the orders of 30 September 1998 were made in circumstances in which she was denied procedural fairness because she could not have another of her choice to speak on her behalf, it is, in my opinion, not arguable that this Court should now intervene so long after the event and in respect of orders of the kind which I have described, having, as they do, the limited continuing operation which I have identified.  Further, even if, as Mrs Hinchcliffe seeks to allege, she was denied procedural fairness in the hearing which gave rise to the orders of 30 September 1998, that, in my opinion, would present no arguable basis for holding that other later aspects of proceedings in the same matter were irregular or that the matter in the Family Court in which either the orders of 30 September 1998 or the later consent orders were made should not proceed further.

In my opinion, no arguable case for the grant of an order nisi of the kind sought is made out.  Although it is unnecessary in those circumstances to consider questions of extension of time, for completeness I would add that there is no sufficient evidence which would reveal why any extension of time should be granted.  In the circumstances the order is application dismissed.

Yes, I will adjourn.

AT 3.34 PM THE MATTER WAS CONCLUDED