MJF v MJN & Ors, MJF v IJN & Ors, IJN v MJN

[1998] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 1997

B e t w e e n -

MJF

Applicant

and

MJN

First Respondent

IJN

Second Respondent

JOHN PRYDE PATTERSON, SECRETARY, DEPARTMENT OF HEALTH & COMMUNITY SERVICES

Third Respondent

Office of the Registry
  Melbourne  No M83 of 1997

B e t w e e n -

MJF

Applicant

and

IJN

First Respondent

MJN

Second Respondent

DEPARTMENT OF HUMAN SERVICES

Third Respondent

Office of the Registry
  Melbourne  No M93 of 1997

B e t w e e n -

IJN

Applicant

and

MJN

First Respondent

MJF

Second Respondent

DEPARTMENT OF HUMAN SERVICES

Third Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 12.10 PM

Copyright in the High Court of Australia

_______________________

IJN appeared in person.

GUMMOW J:   You are the applicant in ‑ ‑ ‑

IJN:   M93, sir.

GUMMOW J:   M93, that is quite right.

MJF appeared in person.  I am the applicant in M40 and also in M83.

GUMMOW J:   Yes, that is right.  The Court has been informed by Ms Annabel Hawkins of the Court Advocacy Unit of the Department of Human Services, representing the third respondent in each of the above matters, that the third respondent does not wish to be represented at the hearing of the applications for special leave and will abide by any orders of the Court save as to costs.  As to that party whom I should identify by the initials MJN, who is named as the first respondent in matter No M40, the second in matter M83 and the first in M93, he does not wish to be represented at the hearing of the applications for special leave and will abide any orders of the Court save as to costs.  Which of you would like to speak first?

MJF:   First of all, when we went to the Full Court of the Family Court in 1997 ‑ ‑ ‑

GUMMOW J:   I should indicate that, whilst you do not have to take up the whole of the time, as you have seen this morning, there is a limit of 20 minutes.

MJF:   Yes.  When we actually went there and I thought that what we were going to do was there was a number of appeals and that we would go through each appeal separately, and that is how I understood it.  But what they did is they amalgamated everything together and we had not asked for that.  Also I was only given at one time when I wanted to get up to the most important point that the courts did not have jurisdiction to have proceedings, that I was given 20 minutes to finish and so I then just spoke about the child particularly, we have all been denied justice, justice being the legislation enacted by Parliament in this country, and which is the main criteria in this case.

I first of all want to speak about M40 because what I have done with M40, I asked for a stay on the order.  The last order made was the order of Justice Brown.

GUMMOW J:   But that has more or less been overcome by events, has it not - superseded by events?

MJF:   Justice Brown’s order on November 1996, we appealed that, the stay, to the Full Court, but we were not granted - we did not win that case.  The Full Court of the Family Court - it is on page 42 of their judgment - found the case to be in excess of jurisdiction once collateral proceedings have occurred.  The problem was that the Full Court ignored the fact that I had previously filed a constitutional matter in the High Court, C 35 of 1995, and that the Full Court of the High Court found that the case in the Family Court was a Children’s Court case and that the child was under the care and protection of State legislation when that was not the case.

What happened was that when the Full Court came down with that decision on 7 March 1996, Justice Brown did not agree with the Full Court of the Family Court, neither did the Department of Human Services, and that she heard the case except that when we began the case we did not know that the contempt proceedings were going to be heard again, so they were heard twice.  Then six months later Justice Brown found that she had no jurisdiction to make orders but she made orders anyway, and that was the last one which we are actually appealing to the Full Court of the Family Court, and they just found that the proceedings are in excess of jurisdiction.

So we are in a situation at the present time, we are not permitted to file in the Supreme Court, we are not permitted to file in the Children’s Court.  The Department of Premier and Cabinet say that they cannot protect the child or they cannot bring child welfare legislation into effect with this child because of the Family Court orders.  So we are here in a situation where this child is being denied the protection ‑ ‑ ‑

GUMMOW J:   You have to persuade us that the Full Court went wrong in a matter of principle.

MJF:   What I am just doing is just showing you that nothing has happened since ‑ ‑ ‑

GUMMOW J:   I know, but you are using your time to explain matters we already know.  What we need to be persuaded is how the Full Court was wrong as matters of principle so that we intervene, because obviously we do not intervene in every case in which one party is dissatisfied, however deeply, with what has happened in an intermediate court.

MJF:   Okay.  I was just answering your question previously.  In the stay, what I was asking for in the stay was because there had been so many breaches of international treaties and because the Family Court order was in excess of jurisdiction there should be a stay, which would have allowed the child to be protected under that law, which never happened.  I have a communication with the United Nations because I have used up every effective domestic remedy in this country to try and protect the child and we cannot get any protection for the matters I said earlier.  The particular thing where the Full Court went wrong was that on 19 September 1994 and on 20 September 1994, Magistrate Peter Power made an interim accommodation order in the Children’s Court.  He also made one on 26 September 1994.

Now, what happened was the Department of Human Services took the case and they intervened in the Family Court on 23/9/94 and prior to that, the day before, they sent a letter to the Family Court where they misinformed the Family Court and did not tell the Family Court that my daughter had an interim accommodation order in the Children’s Court, which is the child welfare law relevant to section 60H of the Family Law Act whereby the judge must not make orders.  The position is that child welfare is a State matter, not a federal matter.  Now, what happened was that Justice Graham was aware of the proceedings but he was not fully told ‑ ‑ ‑

GUMMOW J:   Look, I must remind you again, you must try and persuade us where the Full Court went wrong in matters of principle, and you do not do that by just narrating the history of all these complex events which are set out in the papers which we have all read before we come here.  What we have to be satisfied about is the seriousness of the question of fundamental principle of law.

MJF:   Well, the question is that I actually filed a constitutional matter which I have put in this book here in the High Court in Canberra about the 60H matter.  Previously when the case had been to the Full Court of the Family Court on 19/6/95, they found that the orders of the Family Court were invalid and that the child was under State legislation protection and that therefore there was no need for me to appeal, so I was not allowed to appeal.  What happened was that the department, instead of - the department withdrew from the Children’s Court and used the same proceedings in the Family Court and continued.  Now, the problem was that neither my case or my daughter’s case had ever been presented to the court because we were not allowed to.

On 16 February 1995 Justice Treyvaud declared me a vexatious litigant. Now, he had been told on 24/10/94 that he had no power to make orders under section 60H. My barrister told him that. He made an order, the warrant for the child’s arrest, under a condition that the department filed a consent notice with the court. They never did that and in fact he actually breached, I understand, the legislation by making an order when he never had jurisdiction. So, when he actually declared me a vexatious litigant, he never had power to make orders then, and it was unfair because, whenever I put in for leave to have my applications heard, I could not get a judge to hear my applications. It was wrong because my daughter and my granddaughter were arrested in May 1995 on warrants which were unlawful and illegal. They were unlawful because the Family Court did not have ‑ ‑ ‑

GUMMOW J:   You say they were unlawful, but what I am suggesting to you is that the Full Court of the Family Court dealt with these matters in a judgment of some 48 pages.

MJF:   No, the particular matters which they dealt with ‑ ‑ ‑

GUMMOW J:   And you are seeking special leave to appeal.

MJF:   There has never been a case where - the actual situation of the child’s arrest and mother’s arrest, there has never been a case where this is heard.  Justice Brown in her judgment found that she took no consideration of anything which I said.  She completely ignored everything, claiming that I was not of sound mind.  What happened was that because of all this, not being permitted to - being declared vexatious, Dr Bower, who said that I should have unsupervised access, he was told incorrect facts in the court and he then made theories, and theories based on incorrect facts are not correct.  Now, we never had - my case and my daughter’s case have never been put before the court and there has never been a hearing about the arrest of mother and child.  In fact, my daughter was not even served papers before Justice Treyvaud made the warrant for the child’s arrest.

On 13 October Justice Frederico refused to hear the husband’s important application, firstly because it was not correct and, secondly, because he had not served.  Now, the thing is that Justice Treyvaud and Justice Brown, they were hoodwinked in that they were not aware of the correct procedure that there had been no service of these documents.  The Full Court also went wrong when, after the child’s arrest and mother’s arrest, mother was released.  The child has never been released, in breach of international treaties.  There has never been a court case.  The problem was that I told Justice Haese ‑ ‑ ‑

GUMMOW J:   I have to tell you that these international treaties give rise to no rights in domestic law in so far as they have not been enacted by the Commonwealth Parliament.

MJF:   Except in a situation in this case with the child where legislation has been made in the State, which most of them have.

GUMMOW J:   Well, one then looks to the legislation.

MJF:   Legislation which a child, who is particularly a sick child, has the right to have access to doctors.  A child who is sick has the right, and my daughter proved this with the pathology report.  The child had an infection which the pathologist said was a possible pathogen, possible risk of disease.  The child needed penicillin and more tests, that even still Justice Brown would not vary the medical order.  Now, the department did not - they could not get that medical order under Magistrate Peter Power.  He refused, so what they did is they ran State law in contest with federal law with opposing orders being made to assist the husband so that he could use this medical order against us.  Now, the thing is that we were not told what the department wanted when the case went to court originally on 23/9/94.  We did not know what they wanted.  Terrie Bradley, the social worker, she lied - I use the word “lied” - to Justice Graham.  I say that word because this has continued, yet the department have never substantiated their claim that this child has been sexually abused by 25 ‑ ‑ ‑

GUMMOW J:   Well, you say the person lied.

MJF:   Yes, and I am saying that not only that, but the department continued on with this and even then, when they should have changed their basic argument, they have just continued on with their original one and they have never reviewed anything.  I also need to say that I was really the second person, not the first, to notify the department about the child’s abuse and I did that because I am a registered teacher, I had been teaching the child, and in my teaching of the child I had become aware and come to the opinion that the child had possibly been sexually abused.

So I went to the department and I had with me a newsletter which I have filed about mandatory reporting from the Domestic Violence and Incest Resource Centre where it was going to become law.  I said to the department, “Well, if it’s going to become law, mandatory reporting of child abuse for teachers in a month’s time, you should consider this”.  They have never done that.  Now, the problem is also that under State legislation, a notifier cannot be blamed, and yet the department, they could not do that in the Children’s Court but what they did is they took their arguments to the Family Court and the mother and I were blamed.  Now, we could not be blamed under State legislation for notifying.

I need also to point out that at the beginning of 1994 the Royal Children’s Hospital notified the police.  The police did not notify the department.  Now, that is their duty under the protocol, that they should have actually notified the department.  What I find here is that there are - what we find and I have actually filed in here, Justice Graham and Justice Treyvaud use arguments which were in contradiction with the Full Court of the Family Court about the 60H, and I have actually filed some sections there.  The main part that I find where the Full Court of the Family Court went wrong is that child welfare is a State matter, it is not a federal matter, and that Justice Brown found that State Parliament has not made a declaration to allow the Department of Human Services to take a child welfare case from the Children’s Court to the Family Court, so they were acting illegally by doing that.

I even applied to the Administrative Appeals Tribunal to have a review of this particular case and my application was dismissed before I was allowed to speak.  I took asking for leave to appeal through the Supreme Court to the High Court and the Full Court of the High Court found that the department is responsible for children in this State, meaning my granddaughter.  A difficulty we have had is that we have not been able to find solicitors to assist us with this matter.  I even applied and I got legal aid from the Legal Aid Commission but they could not even find us a family law solicitor because no family law solicitor wanted anything to do with this case.  The reason was that my barrister for the day on 24/10/94, who told Justice Treyvaud that he had no power to make orders and he made orders, that solicitors did not want to be involved in these illegal proceedings, so we are in a situation which is very unfair that we could not get proper representation.  My solicitor that I eventually had was a criminal solicitor.  He could not quite understand the case and I was not told that he was not a family law solicitor until January 1996.

I find that one of the greatest difficulties also is that when you read through the case and you read through Justice Brown’s judgment and every page everywhere there is - factual things are incorrect, even the factual things relating to orders made.  The whole picture of the whole proceeding is quite contrary to what the situation is.  The position is that in the Family Court where they use discretion, discretion is not correct when it is based on incorrect facts.  That is where a great problem is.  Secondly, we have ‑ ‑ ‑

GUMMOW J:   You have seen that light?

MJF: Yes, three minutes. Secondly, we have a - which I have filed in here, a protocol between the Family Court and Department of Human Services, where in a transcript which explains how it is not correct for the department to have secret arrangements with the Family Court. Now, I need to point out that these secret arrangements were practised before this protocol began, and the evidence I have given you is the letter of 22/9/94 where the social worker, Terrie Bradley - that is the one I said who lied in court - where she misinformed Justice Graham saying that the Children’s Court had adjourned. She never told Justice Graham that the interim accommodation orders had been made and these interim accommodation orders are child welfare laws relevant to section 60H of the Family Law Act.

The correct procedure was for the department to stay Family Court proceedings, and all the way through a number of times where they were continually told they have got no jurisdiction, the department never did their duty and they never stayed Family Court proceedings when they should have done.  The greatest tragedy was that when the case went to the court on 22 November 1995 after the child had been arrested and we were trying to get the child back, the child was not given back.  In fact this application was not even heard.  Justice Brown was in the middle of a big hearing and they brought in a very quick case and the child was not given back to my daughter and the department was very well aware that the child should go back to mother because the child had been taken away from mother on a defective warrant.

And so we have a situation here where the custody, the status quo, should have been with my daughter but, because of these dealings and this - where the department, the separate rep and the husband were in collusion together, that the status quo changed and it changed unlawfully.  The Full Court of the Family Court went wrong because they did not understand that the status quo was not as it appears to be.  I also just want to point out with - I have a communication in with the United Nations.

GUMMOW J:   You have mentioned that.

MJF:   Yes, M40.  I listed where there has been a great deal of breaches and the fact that most of these things have been legislated in this country and for that reason these international treaties - this is a way of - we as ordinary lay people under international treaties, we can explain to the court.  It is easier for us because it is in simpler terms and so we can understand it and we can speak on these international treaties for that reason.  Because we are not solicitors, we have to use this particular procedure.

GUMMOW J:   Yes.

MJF:   Thank you.

GUMMOW J:   Now I will call on your daughter.  Is there anything you wish to add?

IJN:   In response to M40, sir?

GUMMOW J:   Yes.

IJN:   Could I say that the Full Court made their error in this case with - the Full Court was good enough to find that orders had been made spanning quite some period of time that were in excess of jurisdiction and further to that, were not of the kind that remain valid until annulled, but of the kind that are never valid, something which the previous Full Court had also found, never realising though that those orders would be continued on.  The first finding of the Full Court never expected the case to return.  When it returned and continued on, the second finding was the same.  But the Full Court then said that I do not believe that the Full Court should determine the issue of what happens in these cases when orders are made in excess of jurisdiction, and I think that the Full Court was wrong there, that they could have determined what happens in these cases and they should have, because there is a world of difference between.....and in excess of jurisdiction.

Having found that orders were made in excess of jurisdiction, having found in fact that one of the contempts should not have been heard because orders had been made in excess of jurisdiction, the Full Court should have then stayed the orders that had been made as a natural progression from there.  I say, sir, that one of the reasons the Full Court says that they do not believe that they are able to finally determine the issue, et cetera, and have not brought the issue to conclusion is because of something which I in fact discovered after the Full Court had occurred.  That is that on every day before the Family Court and including the Full Court when a party, being myself or my mother, did inform the court of no jurisdiction or things which had been reported to the court correctly, the Department of Human Services did stand up and insist that her Honour or his Honour listen to Human Services above all else, and in fact in the total of 105 days in courts, your Honour ‑ ‑ ‑

GUMMOW J:   105?

IJN:   So far to this date, 105.  I believe that the High Court has the power to end this case.  If it does not, I expect 250 days minimum, and I am not joking at all.  It is only from that 105 days in court which is also in other courts.  At the beginning of this year, though I did discover that in fact on every occasion ‑ ‑ ‑

GUMMOW J:   There are very few countries in which you would be given 105 days of court.

IJN:   I never wanted them, your Honour, believe me.  I am mostly a defendant, you can be certain.  But I did discover something at the beginning of this year and it is something which will shorten the cases in the future, which was in every case where there is something that goes wrong and the Full Court did say, “While we found Justice Graham made orders in excess of jurisdiction, we cannot find the reason he made these orders”.  So the reason I give is that in the total of 105 days there are over 500 occasions that the Department of Human Services has, to the Family Court or other courts, falsified, committed fraud or perjury or contempt, and I say this completely knowing what the words mean.  I say that ‑ ‑ ‑

GUMMOW J:   Well, you may say it, but we cannot possibly act upon it.

IJN:   I understand, sir, but I give this as the reason as the Full Court not being - perhaps saying things like - quite surprisingly, I found Justice Graham made the order even though he should not have made this order.  I say that the Full Court themselves had a few problems in that area and that they could not find the reasons behind this.  It is not until one looks further one sees that on particular occasions the Department of Human Services has falsified a Family Court order to the Children’s Court, has falsified a Family Court order to the Supreme Court, has falsified a Children’s Court order to the Family Court, et cetera, et cetera, et cetera, et cetera, and that the Family Court themselves have been defrauded and hoodwinked.

If you look very, very, very closely, which I am not asking this Court to do, but I do ask on some occasions of other courts, it is black and white and it is obvious the reasons why her Honour or his Honour made orders, et cetera, et cetera, without jurisdiction when it should not probably have been done.  I bring this up because I am not sure how it works in that instance.  It is more than an error in law; it is that your Honour was defrauded.  Black and white, and I am willing to stand in any court of law and present this evidence and hold to this point.

HAYNE J:   We must again come back ‑ ‑ ‑

IJN:   But that is all I can say.

HAYNE J:   Just a moment.  We ‑ ‑ ‑

IJN:   Come back to the Full Court, your Honour, yes.

HAYNE J:   And where error is shown.

IJN:   Yes, which is why I am saying it, your Honour, which is why the Full Court on that occasion has not been able to bring the matter to completion and say there are two reasons.  One, the Full Court has said in their judgment on page 42 that the consequences of this, which is orders being made in excess of jurisdiction, acted upon, including acted upon by police, et cetera, et cetera, taken into account at various times by other courts or not, what shall now happen as a consequence when it has been accepted that early in collateral proceedings a challenge was made.  The single judge did not believe a challenge could be made.  The Full Court then had to direct the single judges that challenge can be made.  What happens now, the Full Court says, “We don’t think it’s appropriate.  We don’t think we have enough authority to determine this issue”.  Therefore, I say to your Honours someone must determine this issue.  That is really all for M40.

GUMMOW J:   Thank you very much.  All these matters are being heard together.

IJN:   Could I ask, your Honour, I was understanding that you were doing them separately?

GUMMOW J:   No, all three are being heard together.

IJN:   In that case I should give my address for my M93.

GUMMOW J:   Well, shortly, yes.  What do you want to say about that?

IJN:   As the applicant for the M93, I guess if I could rely upon what I just said and take that slightly further, which is that this Court, I believe, has the power to direct a rehearing and I would say that if a rehearing were to occur, then the Department of Human Services must not be permitted to be one of the parties to the proceedings.  Apart from the reasons that I have given which they have indulged in particular activities ‑ ‑ ‑

GUMMOW J:   But they might want to defend themselves.

IJN:   Well, that would be, your Honour, if I was to bring up these falsifications at the rehearing to the Family Court, then I would expect.  If the rehearing of the Family Court was simply between the husband and myself and was on the issues of the child, it no more contained orders made in excess of jurisdiction, who should be held in contempt for them or not, et cetera, her Honour Justice Brown did give a direction during trial at the beginning of the trial, the main hearing, that the orders of Justice Graham declared by the Full Court in excess of jurisdiction were, during the trial, to be considered as perfectly made during her Honour’s trial.

Therefore, that meant that I myself had never stood a chance, was never listened to at all because I was considered in contempt of court.  The orders of Justice Graham having been considered perfect by her Honour during the trial, completely changed the outcome of that trial and one could see in my affidavit in‑chief to the court in that trial which is I withheld copious amounts of evidence to the court.  I withheld that evidence because I knew that there was not going to be an outcome at the end of this case.  I do not want to go back to court and then be forced into that position again.  It is not right that I cannot come to the court and speak freely, and that is exactly what happened.  It is not right that her Honour should give directions which are errors in law which affect the outcomes of the trial.  It is not right that the Full Court having discovered an error in law should then not deal with that error of law, which I say they could deal with that error in law.

I say that if we went to an appeal in the High Court, the High Court, by looking at the situation, could end this situation already.  I have never ever lost anything on merits in any court case anywhere myself.  It would be a natural assumption that the child would be placed in a different scenario to where the child is today if leave was to be granted, and that is really what this case is all about.  The entirety of this matter has simply been to manoeuvre the position, the ownership of the child - on each and every day you give whatever excuse or falsification is needed to secure ownership.  We have had back-to-back court days in the State court and the Federal Court with neither judge being informed of the truth on any occasion.

I myself had a very lengthy hearing in the Children’s Court which I won.  Magistrate Levine forced the department to say, “Totally unproven; nothing found against the mother”, and yet in the Family Court you will see in the judgment there is not a single reference to the merits of the mother of the child, not a single reference, I say, your Honour, and yet the amount of material that is available for that is copious and enormous in its amount, and yet it cannot be presented.  This is entirely unfair.  It is entirely unfair that error in law should continue on not simply for so long but when it can be dealt with.  There are other cases of cases between the Children’s Court and the Federal Court going on.  There have been in the past.  There are some coming up in the future.  They all have difficulties as well.  We say that the department is falsifying where welfare may be heard.  My personal opinion is that if matters of a serious nature arise in the Family Court, the State can deal with those matters, but that itself ‑ ‑ ‑

GUMMOW J:   I know you have opinions about these matters.

IJN:   But that itself is something which I say is only an opinion because we cannot, and nor can any case or any judge, find anywhere that it is 100 per cent given as to what is going to happen.  There are other cases that are held mixed between the State/federal....., as it were, and it is very unfair to the children and very unfair indeed.  Anything you can do to clear that situation for myself and others is going to be helpful, but the error in law is there.  The single judge, Sally Brown, found herself that there is an error in law, that Justice Graham’s orders were made in breach of the Commonwealth Law Act.

The Full Court upheld that finding, sir, and I think that is the only part of the judgment to be considered.  In fact, the Full Court erred, I say, in setting forth the 48‑page judgment when it was unnecessary.  The word I have been given which I will say is an opinion again, is that they are simply playing the conservative approach playing both sides in the interim and that that is how the Full Court judgment should be considered.  I say there is no need for those 48 pages.  It simply reduces to about six to seven pages, your Honour, when one looks at the law side of that judgment.  In all areas where it says law, it says that a judge must not make an order.  These types of orders are never valid from the day made, et cetera, et cetera.  But your Honours will see nothing further to that.  As to the consequences which the Full Court and the Family Court caused themselves by their single judges not recognising this error in law sooner, by refusing to accept that.....proceedings a challenge can be made during those proceedings, and that the costs of all of this not just to myself, but to the Family Court ‑ ‑ ‑

GUMMOW J:   I think you are starting to repeat yourself.

IJN:   Yes, I am just about to end actually, your Honour.  I was just coming to costs then really as a finality, which is that there has been a great deal of costs in all of this, a lot of cost to the Family Court which I say is not necessarily the Family Court’s fault, given that these different false

information and coercion of the judges improperly has continued on and it is not fair to myself either, and that my costs in this matter alone have been in excess of a couple of hundred thousand dollars and I consider that the cost will continue to rise well above that and I can only say that the error in law having been found, the case having been shown as to what it is, which is truly a welfare case and nothing to do with whatever else is said there, that your Honour should grant leave and deal with this matter, sir, and let it be ended.

GUMMOW J:   Notwithstanding the deeply felt grievances of the applicants, they have not shown the presence of an issue of the kind which must be shown in order to attract any grant of special leave by this Court.  Accordingly, each application is refused.

AT 12.45 PM THE MATTER WAS CONCLUDED