Livingstone v Willox

[1997] HCATrans 385

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M84 of 1996

B e t w e e n -

WINIFRED MARGARET ESMERALDA LIVINGSTONE

Applicant

and

STUART WILLIAM WILLOX

Respondent

Application for special leave to appeal

BRENNAN CJ

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 10.21 AM

Copyright in the High Court of Australia

MRS W.M.E. LIVINGSTONE:   Your Honour, I appear for myself in this matter.

I come before you because I have been right through the Family Court and I do not think that I have been given justice for various reasons; mainly because of corruption for one thing, and secondly, because of intimidation.

I was listening, somewhat, to Mr Thorpe’s case, and it seems to me that his problem is similar to mine because in this country we have no Bill of Human Rights. We have an assumption - like my assumption that the police would protect me - but there is nothing in writing and it does appear that what we should be thinking about when we are changing the Constitution is putting forward this view that the Wik legislation and all that goes on with it, Mabo and so on, is really a question of human rights.  Of course it is a question of justice.  Are we not all supposed to be equal before the law, and are we not supposed to be free in a democracy, and are we not supposed to also have love in our community?  I do not know if any of you did watch the first Wednesday programme on television recently, “Have the Churches Lost their Way?”.  Well, I think they have because they are no longer - like almost every other section of the community, they are not paying any more than lip service, if that, to the truth.  Because without truth, justice is impossible, it seemed to me that it was time that the Australians had a good look at themselves - not just Australians, but people, had a good look at themselves and decided for themselves whether the truth was not always the best.  Honesty is the best policy.  Crime does pay, unfortunately; but honesty is still the best policy, and if you are brushing paedophilia under the church and the Catholic community, and if you are covering up bribery and corruption and sexual perversion in the Uniting Church, then I think it is time that we pointed out that God is truth.

In my documents that I handed to you I did offer a little question as to what is truth, because, of course, we all do know the truth, because in us is a spark that is the divine spark, and that is from the God of truth, and so what we have to do is to fan that until it glows.  Then everybody will know what they should do and where they should be and who they are in our community, because, again, Mr Thorpe is quite right, there is so much confusion.  How can you get security in confusion?  You cannot.  You can only have security by standing on the rock of faith in the truth, which is God.  When Pilate said at the crucifixion of Christ almost 2,000 years ago, “What is truth?”, that was a real politician’s question because Pilate was, in fact, a political Judas.  He knew about the holy spirit, which is the spirit of truth, but he sold it down the river too, because he was afraid of Caesar.  That, we have in our community very much today, all over.

So, we all know what truth is.  Truth is what is real; not what is false.  The whole nation, I think, has become so used to falsity that there is no way that everything false is unreal, because, by definition, it is false.  So, I would like to ask you to have a look, please, at my case, and the Lord did say I was not fighting for myself alone, and I was no fighter, I may tell you.  I was a doormat.  That is also a church teaching, and unconditional love, the reverse is true.  One has to be strong in faith and rely on God’s power, because there is for me no other.  It does not pay anybody else, and that is why I have no legal representation to represent me.  That, I think, is a grave indictment of your profession, or business, or whatever you look at it.  If people are going to be professional, they have to observe equity, and that was the explanation of the other thing that I handed to you.

BRENNAN CJ:   Thank you, very much, Mrs Livingstone.

MRS LIVINGSTONE:   Is that 20 minutes?

BRENNAN CJ:   No, not at all.

MRS LIVINGSTONE:   I beg your pardon, your Honour.

BRENNAN CJ:   You may proceed.

MRS LIVINGSTONE:   I am appealing, as I say, against several judgments in the Family Court.  As usual, we are told to go first of all to the person responsible, and while I was trying to get a taxi to come here this morning, waiting - Jeff Kennett is right about that, taxis are very difficult to get - I came across a letter that I did write, and which was unacknowledged, to Chief Justice Nicholson, Family Court of Australia, and it was on 20 June 1996.

Dear Sir,

Last week a youngish lady in the registry on the 18th floor of Morland House, suggested I write to you to let you know officially of my concerns, not only about my own case but also about those cases which are judged in such a way that the settlements unsettle the settled to the extent that they demonstrate by committing suicide and murder, by running a car into your building, or, more recently, by barricading themselves symbolically against a hostile world.  One of my former students -

I used to lecture in German at Monash, your Honours -

he had an open marriage; they were both German, and I said to him, “It will not work, Hans”.  Then I saw in a newspaper, not that I routinely read them, but the Lord does direct my reading, he killed himself when he had the care of his two young children as a result of the court’s decision to award their care to the mother.

Of course, I am not blaming your people entirely, because in nearly every case there are faults on both sides; in the marriages themselves, and in the decisions taken by the courts.  However, corruption seems to be too much in evidence in the family law area, and alas, not there alone, but even in the Supreme Court of Victoria.  Not being legally trained, myself, I entertain some basic ideas about the law which I am reluctant to relinquish.  For example, I expect everyone to be treated equally as is claimed, and I expect to be able to respect the lawyers who are supposed to serve the law and not themselves.  But, perhaps the most important of my expectations is that the truth, the whole truth, and nothing but the truth, should be observed and not just said, as people tend to gabble the Lord’s Prayer and not mean it.  Without truth, no justice. 

Covering up the truth out of loyalty to family, friends, colleagues, clients, will only allow the inducements given to pervert justice, and any loyalty which is not given to God, that is, to absolute truth first, will prevent the truth from being known.  For the sake of some political party, some church, or some court, you and your fellow judges who are called by the name of justice, are bound in order to live up to your good name to honour the truth.  God says he is among the judges.

I certainly hope so, and I live in hope.  My practical concern is that in my own case documents have disappeared.  Yes, not only disappeared, but they are altered.  The mail is intercepted, and they are altered.  They just disappear, and there goes your evidence.  They have disappeared in the Family Court, itself, on several occasions, and because of a disregard for the truth, or lack of real effort to find out the truth, or inducement to cover up the truth, justice is not being done.

Yours faithfully and sincerely

Your Honours, that is why I am here.  I think that I am assuming that you are allowing me to address myself not just to the Full Court, but to all the - and particularly to the first one, because if the judge there had not been corrupted all this would not have happened.  What has happened is the cover‑up, and it just will not do, because if you have bad apples in a barrel they are all going to be affected.

The major excuse, I think, is that he was only doing what he was asked to do, Justice Kaye, in the first trial in January 1995.  He was asked, he said, to divide the goods 50:50, and there were two days set aside for the trial, and it took one morning.  Twice during the hearing he turned to my barrister, John Wadsley, and he said, “This case has got to be over by lunch‑time, has it?”, and they did nothing for me.  I had all those documents in court because it had already started, the lack of protection that is in our community for anyone who wants to tell the truth. 

I do not think they crucify physically in the 20th century, but certainly Nazism is well and alive and I have been concerned during the last decade that we would become, and I hope we will not, a dictatorship, because it has certainly been creeping up on us.  It is arrogance; and it is arrogance too, that causes the family violence, because if you, like the Nazis, did not think you were superior to the people whom you are misusing, you would not do it.

That is the problem, is it not, too, with the Aboriginals.  We have made them like us, unfortunately.  I was speaking to a lady who is an Aborigine, who said to me the missionaries came with their 10 commandments and broke every one of them, and after 200 years they have succeeded in corrupting the Aborigines, too, because we could learn a lot from them.  The answer is not to have two standards, but one, as God has.  One standard for everyone.  Because, this liberty, equality, fraternity, comes from the Bible.  Communism is just another illustration of what can happen when christians fail, and when we fail in our democratic duty, then they take over, and again we have a dictatorship - this time it is called of the people.

Apart from the financial injustice, and that was enormous, and I forgot in the Full Court that money talks, and so, if I could please ask you to look at the summary of my argument, and you will see that I have really been done out of a great deal of money.  It did not ever come out to view that my ex‑husband, in 40 years of marriage, never, at any time, gave me more than $500 a month.  Arithmetic is my worst subject - I think it is $115 a week for everything - for Christmas, for birthdays, for entertaining, for school fees, for food, clothes and university education.  That was all.  That was not even mentioned.

You see, the problem is with the 79A(1)(a) that when you look at it, on the face of the record, it has all been done, more or less, unless you want to pick holes, and there are lots of holes to pick, according to correct practice, at least that seems to get by in law.  I do not think it is correct, myself, but then I am not versed in law, as Archbishop Temple said, according to Lord Denning, I am interested in justice.  I do think it is a bit sad when, you know, some legal loophole succeeds in the face of justice.  So, behind the 79A(1)(a) is not just the face of the record which everybody is very anxious to look at, like brick veneers, it is what is behind it; what is behind the record is what matters, is it not?  That was never addressed by my legal representatives.

I pointed out your Honours’ very just - and I do flatter - assessment of long marriages, and marriage in general, in Mallett v Mallett.  Not one of my legal representatives, and I had five, and spent $40,000 in the process, almost, advised me to ask for anything other than 50 per cent, because the courts will not give it.  That is what I was told.  However, Parliament, you see, has not provided expressly by implication that a homemaker is equal to somebody who earns the money.  Unfortunately, in my case, no account was taken of the fact that not only did I function as housewife - well, I paid somebody for that - and childcarer, but I worked.  That was not taken into consideration, either.  Nor the domestic violence.  I do think, and I do not know whether you agree, that the Family Law Act which says “no fault”, well, I did not approve of divorce, either, but to make it too easy is perhaps also not the right thing.

What is essential is that we should bring that principle of equality into relationships.  So, the Aborigines are equal to us, and the Italians are equal to us, and who is saying we should have Italian courts in Australia.  Just one court will do, but it has got to be a court system that is just, and incorruptible, and independent, because government interference in my case has also interfered with the process of law.

So, one reason for 79A(1)(a), and I think I have fulfilled all the categories in my evidence which I was not allowed to bring forth, because they do not want the truth to be known.  My barrister even said that, one true thing he did say.  You have to look at what is behind it, and perhaps you could ask people to give a little potted version of their married life or something so that you can work from there, instead of the 50:50 principle.

Greater attention, it was said in Read v Read, should be paid to the legal and equitable interest of the parties as the starting point, and then to ask oneself whether in the light of the contributions, both financial and non‑financial, and, of course, in the light of the needs of the parties, it is equitable and just to adjust those rights in that particular case.  Each case is going to have to be done on its merits, just as it is going to have to be done for the Aborigines, or it is not fair, is it?

I think that, perhaps, in Clifton v Stuart, and Justice Fogarty, himself, had qualms about that, as you will see from the transcript of the hearing before him.  The conclusion was whether a miscarriage of justice refers to an unfair trial or an unjust result.  Should they not be the same?  A miscarriage of justice must arise out of the judicial process as quoted above but then they extend that to say that it refers to other things apart from what actually takes place in court; which is easy to organise because everybody had learnt so well what to do to cover up, that it takes some time to uncover what has got to be uncovered in the interests of justice.  So, we do need fair trials, subject to the rules of evidence, fairness and admissibility.  There is no doubt that Justice Kaye sinned against 79(2) (4) and 75, most of the clauses in those rules:  the age and state of health of each of the parties, the income, property and financial resources, the earning capacity of each party, the duration of the marriage.

But, if it is an exploitive marriage, and mine was - I was some kind of slave, thinking it was what the Bible wanted.  The Bible does not.  The Bible wants us not to be excessive in love for each other, and you cannot be in excessive love for him, because you have to love the Lord your God with all your heart, and all your mind, and all your strength, and all your soul, and your neighbour as yourself, not more than yourself, which is what the churches are teaching.  As for the insistence on sex - that is the devil’s definition of love, and all the other things that go along with it.  He does not see, because he is the devil.  I would also invoke section 75(o).  This subsection to support my claim to compensation for having been subjected to family violence, like the Princess of Wales, too, by the way.  Medical abuse, as you can see from the documents, that is horrifying.  In communist countries they used a person’s psychiatric health.  They used, instead of prisons the asylums, and an attempt was made to do that with me, too.  And doctors are liable, too.

There is no reason to try to suppress the truth.  I heard as I drove down this morning, in Canberra at long last doctors’ papers are going to be available to everyone - private as well as public, and something should be done about that in the hospital system.  How do we get at the truth?  The reason is, “Oh, we might be sued”.  Well, you ought to behave with the thought that around the next corner you might be sued, just as you drive a motor car with the thought, on the road, that you might meet some fool coming the other way, or some unexpected obstacle.  You have to pay attention to what is expected of you if you want respect, and not have it by virtue of office, and then cover up for the people who should not be holding that office because they have forfeited.

Then a long marriage which almost wrecked my health and happiness, and certainly wrecked my career - I was not a career woman, by the way, but I did enjoy it very much, and I lost my job, too, over envy ‑ ‑ ‑

BRENNAN CJ:   I am afraid now, Mrs Livingstone, that your time has expired.

MRS LIVINGSTONE:   May I just point very briefly, your Honour, to the problem of voodoo?

BRENNAN CJ:   I am afraid your time has expired.

MRS LIVINGSTONE:   Thank you.

BRENNAN CJ:   I should say that the Deputy Registrar certifies that she has been informed by J.M. Smith & Emmerton, solicitors for the respondent in this matter, that the respondent does not wish to have any representations made on his behalf at this hearing and will abide the decision of the Court save as to costs.

Despite the earnest submissions made by Dr Livingstone, no ground for the grant of special leave appears.  For that reason, special leave must be refused.  Special leave is refused accordingly.

Thank you, Mrs Livingstone.

MRS LIVINGSTONE:   Excuse me, your Honour, may I just check.  Am I allowed to appeal again?

BRENNAN CJ:   No.

MRS LIVINGSTONE:   This is the last appeal? 

BRENNAN CJ:   Yes.

MRS LIVINGSTONE:   It was not really what I expected but God works in mysterious ways.  Thank you.  It is Dr Livingstone, sir.  I chose the name after I stopped being Willox because I did not want to die and they were making attempts on my life.

BRENNAN CJ:   I am sorry if I had not described you as Dr Livingstone.

MRS LIVINGSTONE:   Because it was chosen on the basis of 1 Peter chapter 2 verse 5 where it tells people that they can be living stones in God’s spiritual church.  And the way the churches are and what they have been doing to Aborigines and others, I do not think we should be following their lead, but looking to you for the constitutional bill of rights.

BRENNAN CJ:   Thank you, Mrs Livingstone.

AT 10.46 AM THE MATTER WAS CONCLUDED