Re Nicholson & Ors, Ex parte Kay

[1996] HCATrans 7

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M5 of 1996

RE:NICHOLSON CJ AND ORS

ex parte

KAY

DAWSON J (In Chambers)

AT MELBOURNE, THURSDAY THE 1ST DAY OF FEBRUARY 1995

HIS HONOUR:   Is there any appearance in this matter?  It is Mr Kay, is it?

MR KAY:  Yes.

HIS HONOUR:   And you are appearing personally, Mr Kay?

MR KAY:  Yes, I am, your Honour.

HIS HONOUR:   Well, now this is an application for prerogative relief against three Judges of the Family Court.

MR KAY:  That is correct.

HIS HONOUR:   And it arises out of proceedings in that Court concerning access to and custody of three children from your marriage with Heather Kay.

MR KAY:  That is correct, yes.

HIS HONOUR:   Yes, well, what do you want to say in support of the application, Mr Kay.

MR KAY:  Well, I believe my - the documentation I have provided you with covers it very well, your Honour.  There is not much to add besides that, I do not think.

HIS HONOUR:   The problem, Mr Kay, is that the only order that has been made by the Court against which you seek the relief is an interlocutory order.

MR KAY:  Yes.

HIS HONOUR:   By that I mean they have not finally determined anything, and they will presumably in due course do that and if you have any grounds for complaint then of course you can bring proceedings.  But it does appear to me that - and I have a discretion as to whether I grant relief or not, or grant an order nisi - and it does seem to me that the application is somewhat premature.  It would not be normal for this Court to grant an order nisi for prerogative relief in relation to an interlocutory matter.  So I am putting to you the difficulties which feel are with the application.

MR KAY:  Well, I feel - if I could address the Court at this point - that the three Judges that were on 13 December last year - that the decision of Dessau J was invalid, and as I had applied for my three children over the school holiday period for various reasons, as you are aware the grandfather being 85 and ailing, that they were not in a position to deny me my children because in actual fact the children have been in my custody from July last year.

HIS HONOUR:   Well they are going to decide eventually the matter of your appeal from the judgment of Dessau J.

MR KAY:  Sorry, I did not catch that.

HIS HONOUR:   They are eventually going to decide your appeal from the judgment of Dessau J.

MR KAY:  Yes, yes.

HIS HONOUR:   But they have not done so yet.

MR KAY:  No, that is so.

HIS HONOUR:   That is why it seems to me that your application is premature.

MR KAY:  Well, as I say I feel that on 13 December last year they were in a position to make a judgment then that Dessau Js order was invalid, and to deny me my children when they are in my custody is just simply unconstitutional.  It goes against the very ordinance of the family law.  That is how I see it.

HIS HONOUR:   Yes, well, now is there anything more you want to say?

MR KAY:  No that sums it up - the two documents sum it up virtually.

HIS HONOUR:   Yes, very well, thank you.  You can resume your seat Mr Kay.  This is an application for prerogative relief against three Judges of the Family Court.  It arises from protracted proceedings in that Court concerning access to the three children of the marriage of Ian and Heather Kay.  The application is for orders nisi for writs of prohibition and certiorari directed to the members of the Full Court of the Family Court.   The applicant appears in person.  The applicant has lodged notice of appeal in the Family Court against a decision of Dessau J dismissing his application for joint custody of the children of his second marriage. 

Dessau J also ordered that the applicant may not, without leave, institute proceedings in the Family Court with regard to guardianship custody or access to the children of the marriage and that he had no contact with the children.  That order was varied by Graham J on 28 September 1995.  The appeal has not yet been determined but on 13 December 1995 the Full Court ordered that an application by the applicant for access to the children of the marriage pending the determination of the appeal be refused.  The applicant appears to seek relief other than orders nisi for prohibition in certiorari against the three members of the Full Court, but the writs which he seeks are directed only to the three members of the Full Court and there appears to be no basis upon which the court could grant the other relief which the applicant seeks.

The appeal by the applicant which is pending before the Family Court has not yet been determined and it would be inappropriate to grant prerogative relief against those members of the Full Court who in interlocutory proceedings refused the applicant's application to go to court.  The issues involved in that application remain to be determined finally by the Full Court and for these reasons I would refuse the applications for the orders nisi.  Very well.

AT 11.16 AM THE MATTER WAS ADJOURNED
INDEFINITELY