Schorel & Elms

[2000] FamCA 272

[2000] FamCA 272

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA71 of 1999
File No. ML2944X of 1989

IN THE MATTER OF:

GERRIT HENDRIK SCHOREL

Appellant/Father

- and -

CELIA GABRIELLE BRIGETTE ELMS

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:                  Ellis, Coleman and Chisholm JJ.
HEARD:  6th day of March 2000
JUDGMENT:           6th day of April 2000

APPEARANCES:     Mr G. H. Schorel, the appellant father,

appeared on his own behalf.

Address for Service:
PO Box 13, Berriwillock  VIC  3531

There was no appearance by or on behalf of the respondent mother.

Catchwords: Family law - Jurisdiction of the Court - Ex-nuptial child - parens patriae jurisdiction - Commonwealth Powers (Family Law - Children) Act 1986 (Vic) - s.60H (s.69ZK) Family Law Act - Jurisdiction of Courts (Cross-vesting) Acts 1987 (Cth) and (Vic) - Re Wakim;
Ex parte McNally (1999) 24 Fam LR 699 - Federal Courts (State Jurisdiction) Act 1999 (Vic)

This was an appeal against orders made by Morgan J. on 12 August 1999, in which her Honour ordered that the father’s Notice Objecting to Jurisdiction and his Form 8 application be dismissed.  The father has appealed against that decision, listing 28 Grounds of Appeal and, in addition, filed a document headed “Form 14” and entitled “Objecting to Jurisdiction”, in which he objected to the jurisdiction of the Court on extensive grounds.

There was no appearance by or on behalf of the mother and the hearings proceeded on the basis that the relevant child, G, is an ex-nuptial child.

As a result of an order made in the Children’s Court on 1 October 1986, G was placed in the care of the relevant Victorian State Minister.  On 2 October 1987, an interim order was made in the Supreme Court of Victoria that G be a ward of the Court and that, on an interim basis, the father have sole custody of the child.  On 23 February 1988, the Victorian Supreme Court ordered that G remain a ward of the Court, that the father have the sole custody of the child and the mother have defined access to her.  In May 1988, the order made on 1 October 1986 in the Children’s Court was discharged.  On 23 May 1990, Hase J, in the Family Court, made consent orders, inter alia, discharging the child from the wardship of the Victorian Supreme Court.

The father contended before the trial Judge and before the Full Court that the Family Court does now and at no relevant time did have jurisdiction to make parenting orders in relation to G, primarily because the child was a ward of the Victorian Supreme Court.

The Court considered the following matters raised by the father:-

1. Whether the reference of power from the State of Victoria to the Commonwealth excludes the making of laws relating to children who are wards of the Supreme Court of Victoria. See Commonwealth Powers (Family Law – Children) Act 1986 (Vic), particularly s.3, and the Family Law Amendment Act 1987 (Cth).

1. Whether the provisions of the old s.60H of the Family Law Act 1975 (Cth) preclude the Family Court from making orders in relation to children who are wards of the Supreme Court of Victoria.

1. The significance of the cross-vesting legislation.

Held, in dismissing the appeal:-

1. That the reference of power to the Commonwealth by the State of Victoria is not qualified in the manner asserted by the father.

1. The Court expressed the tentative view, as the matter was not fully argued, that the relevant legislation set out in Schedule 5 of the Family Law Regulations does not limit the reference of power from the State of Victoria relating to the custody and guardianship of children by reference to the wardship jurisdiction of the Supreme Court of Victoria, nor does the old s.60H have any application to the exercise of jurisdiction under the Family Law Act relating to children who are wards of the Supreme Court or otherwise affected by orders made by the Supreme Court under its inherent wardship jurisdiction.

1. Section 6 of the Federal Courts (State Jurisdiction) Act 1999 (Vic) cannot be construed in the manner submitted by the father. Even if contrary to the tentative view expressed in paragraph 2, G’s status as a ward of the Supreme Court precluded the Family Court from making parenting orders relating to her, no such impediment existed after Hase J. made the order of 23 May 19990, since that order discharged G from wardship and it must now be regarded as valid because of the operation of the 1999 Victorian Act, notwithstanding the decision of the High Court in Re Wakim;
   Ex parte McNally (supra).

Thus, there is no substance in the father’s submissions that the Family Court lacked jurisdiction. 

No cogent submissions were made to support any of the other grounds of appeal.

The Court left open the question of the power of the Court to make the declarations sought by the father.

Reportable.

INTRODUCTION

1. On 19 July 1999, the father filed an application in which he sought the following orders:-

“1.       That time is abridged for so far as this may be needed for urgent hearing.

2.       That the application is heard by way of EX PARTE hearing.

3.That the applicant be granted “LEAVE TO APPLY” for so far this might be deemed required and further the Form 14 “OJECTION (sic) TO LEGAL JURISDICTION” be heard instanter Ex Parte.

4.That IT IS DECLARED that in accordance to thesubmission (sic) of the applicant father Mr GERRIT HENDRIK SCHOREL the Family Court of Australia and so also the Magistrates’ Court at Morwell on 25-1-1989 having acted under the legal provisions of the Family Law Act 1975 at no time had legal jurisdiction in regar (sic) of the child G BORN 28-3-1985 and the Court further acknowledges that contrary to the orders of His Honour Hase J of 23-5-1990 the child still is and always remained a WARD OF THE SUPREME COURT OF VICTORIA and for this all and any orders made by the Family Court and the Magistrates’ Court at Morwell under the provisions of the Family Law Act 1975 are declared to be NULL AND VOID.

5.       That the respondent mother has 3 weeks from the date of this order to appeal.

6.That the father GERRIT HENDRIK SCHOREL is declared to be an AGRIEVED (sic) PERSON.

7.That the child G is declared to be an AGRIEVED (sic) PERSON.

8.That this Court recommends for the Commonwealth Attorney General to provide a Cost (sic) Certificate in regard of all and any cost and associated expenditure the applicant father may claim in regard of the formentioned (sic) proceedings.

9.That in the alternative of a Cost (sic) Certificate or in adition (sic) of such Cost (sic) Certificate the respondent pays the fathers (sic) cost (sic) of these proceedings this to include any other reasonable expenses incurred by the father to bring about these proceedings.

10.That the Court directs that lacking any further legal jurisdiction all further matters be placed before the SUPREME COURT OF VICTORIA for further hearing.”

1. At the same time, he filed a document entitled “Objecting to Jurisdiction”, headed Form 14, in which he objected to the jurisdiction of the Court on the following grounds:-

“1.That I do not belief (sic) that the Family Law Act 1975 provides for any provisions which allows (sic) such manner of litigation to be instituted and as such the proceedings instituted by Mrs C Elms originally in the Magistrates’ Court of Morwell and heard on 25-1-1989 must be deemed NULL AND VOID and so all and any orders further/subsequently made in the Family Court of Australia in regard of this case do (sic) far.

2.I continue to object to the jurisdiction of the Family Court even so the applicant has/had instituted proceedings in relation to the child G born 28-3-1985 as she is and always remained a WARD OF THE SUPREME COURT OF VICTORIA since the interim orders were made on 1-10-1987 and final orders were made on 23-2-1988 upon the fathers (sic) NOTICE OF MOTION.

3.That His Honour Hase J on 22-5-1990 commenced proceedings without any legal jurisdiction but appeared by consent of the legal representatives then to have PURPORTINGLY discharged the said WARDSHIP this even so that INTERNATIONAL CASE LAW dictates that where a Court has no jurisdiction on (sic) the first place then it can’t invoke jurisdiction regardless if both parties consent.  Further Joske J of the Family Court of Australia in 1976 recorded case law made known that the Family Court is a Court created by Statue (sic) and as such can’t exercise any legal jurisdiction in regard of “PARENT PATRICIA” (Court wardship).

4.That s76(iii) of the Australian Constitution provides that where the Commonwealth is a party to the proceedings then original jurisdiction lies with the High Court of Australia.  As such, even if the Family Court were to assume Court Wardship then it would become a party to the proceedings and as such original jurisdiction lies by the High Court of Australia.

5.That there never was any cross-vesting application made to transfer the case from the SUPREME COURT OF VICTORIA to the Family Court of Australia and neither had the Supreme Court ever discharged its Court Wardship of the said child to enable any cross vesting powers to be exercised by the Family Court in any way.

6.That in previous proceedings, in particularly (sic) on 22-12-1994 before Hase J in the Family Court of Australia, the Family Court made it very clear that regardless of the harm caused to the child the Court pursued to imprison the custodian father for 21 days and such orders was (sic) in effect PRE-SIGNED and so PREDETERMINED already on 21-12-1994 as such the Family Court displayed a total incompetence to appropriately deal with “Parent Patricia” duties and obligations in regard of the said child.

7.That the Full Court of the HIGH COURT OF AUSTRALIA in a recent decision declared that it was UNCONSTITUTIONAL to transfer any cases from the State Courts to the Family Court of Australia.

8.That I object to the Court resources being abused and misused for the respondent mother having manipulated the LEGAL SYSTEM as some weapon to inflict uncalled harm to both the child and my self only for her to abuse the same orders obtained as if they are not relevant to her.”

1. In that document, the father states that, for the reasons set out, he seeks “the Court to truly declare its legal jurisdiction or the lack thereof.”

1. The Rules of Court provide that a respondent in proceedings for principal relief who wishes to contest the jurisdiction of the court must file a response objecting to jurisdiction in accordance with Form 14 (O.7 r.9) and that a respondent to an application other than an application for principal relief who wishes to contest the jurisdiction of the court, must file and serve a response to the application in accordance with Form 14.  The rules make no other provision for the use of Form 14 which is to be found in Schedule 1 of the Rules of Court and is entitled “Response objecting to jurisdiction”.

1. There was no appearance by or on behalf of the mother in the proceedings before the trial Judge or before us and both hearings proceeded on the basis that G is an ex-nuptial child.

1. The applications came on for hearing before Morgan J. on 12 August 1999.  Her Honour commenced her reasons for judgment by saying:-

“Before the Court are two applications filed by the father.  Although the Court stamp bears the date of 19 July as the filing date, the father has told me and I accept that the applications were, in fact, mailed to the Court on 9 July 1999.  He has given evidence on oath in relation to service of his applications on the mother and I accept that evidence.  By his form 8 application he seeks leave to make an application objecting to Jurisdiction and for various declarations.  By a form 14 the applicant father objects to the jurisdiction of this Court in matters relating to his daughter, G, born 28 March 1985.  The father requires leave of the Court to proceed.”

1. At the completion of those reasons, her Honour ordered:-

“That the father’s Notice Objecting to Jurisdiction filed 19 July 1999 and his Form 8 application filed 19 July 1999 be dismissed.”

1. The father has appealed against that order. 

1. In his Amended Notice of Appeal, he indicates that, in lieu of the orders appealed against, he seeks the following orders:-

“1.That the Morgan J orders of 12-8-1999 are set aside and the Court declares it never had legal jurisdiction in regard of the child G.

2.Orders are made as per the fathers (sic) application that were beofre (sic) Morgan J.

3.The Federal Attorney General be requested to provide a cost (sic) certificate in regard of all past cost (sic) of the appellant in these proceedings.

4.       Such further orders as may benefit the appellant.”

JUDGMENT OF THE TRIAL JUDGE

1. In the course of her reasons for judgment, Morgan J. said:-

“The question of this Court’s jurisdiction in relation to G has been ventilated on many occasions by the applicant father and the matter has a very long and complex history of applications in this Court.  The thrust of his previous applications were to do with the fact that, pursuant to orders of the Supreme Court which were made final on
23 April 1988, G was a ward of the Supreme Court of Victoria.  The matter came before the Chief Justice on 28 February 1995.  He delivered a judgment in relation to the jurisdiction of the Court. In the course of that judgment His Honour said in a passage referred to by the father in very comprehensively and minutely researched written submissions:-

“On 1 July 1988 further legislation conferred upon both the Family Court, Federal Court and State and Territories Supreme Courts, cross-vested jurisdiction in civil matters, so that following this date this Court became able to exercise the jurisdiction of the Supreme Court of Victoria and, in any event, had exclusive jurisdiction in relation to the custody and guardianship of this child as and from 1 April 1988.””

1. Her Honour went on to note that, between 1986 and 1990, all the States, with the exception of the State of Western Australia, referred certain matters relating to children to the Parliament of the Commonwealth of Australia and that the reference of power by the State of Victoria to the Commonwealth took place on 1 April 1988.  (In fact, the Victorian legislation took effect as of 28 October 1987).  Her Honour then said:-

“Thus the legislative power of the states vested in the Commonwealth from that date and in the exercise of that power the Commonwealth Parliament legislated in respect of all children, subject to an exception by the Family Law Reform Act 1995. That exception relates to children who are the subject of orders within the protective jurisdiction of the Children's Court. There are special provisions in the Family Law Act which exclude those children from the referral of legislative power.

Thus, the jurisdiction of this Court in relation to children does not come about as a result of the cross-vesting legislation, which has the effect of a vesting of jurisdiction, but comes about as the result of a referral of power to legislate which has effect by virtue of the reference power contained in the Constitution.”

1. The trial Judge next referred to a judgment delivered by Dawson J. in the High Court on 21 September 1995 in relation to which she said:-

“The applicant father’s present application would have been objectionable and liable to be struck out on the basis that the decision of Dawson J rendered the question of this Court’s jurisdiction in respect of G resjudicata (sic).  The issue had been decided by Australia’s most superior court.  It was not for me to disturb that finding.  However, the father submitted that the recent decision of the High Court in Wakim had changed the situation.  Indeed, he submitted that that decision vindicated his position and demonstrated that all along he had been correct in his objection to the jurisdiction of this Court.”

1. We have had an opportunity to consider the reasons of Dawson J. referred to by the trial Judge for refusing the father’s application for orders nisi for a writ of prohibition and a writ of certiorari.  The applications were based, inter alia, on his contention that the Family Court did not have jurisdiction to deal with matters concerning the custody of his daughter because in 1988 she was made a ward of the Supreme Court of Victoria. 

1. After referring briefly to the decision in Re Wakim; Ex parte McNally (1999) 24 Fam LR 699, the trial Judge concluded her reasons for judgment by saying:-

“The jurisdiction of the Family Court in relation to ex-nuptial children did not come about as a result of the enactment of the cross-vesting legislation.

It came about, as I have said, by a referral of power by the State of Victoria to the Commonwealth of Australia. That is a very different thing from a vesting of jurisdiction by one court in another. It means that the State of Victoria gave up its legislative power in relation to all children within its jurisdiction, with the exception of those matters to which I have referred. It gave up that power in favour of the Commonwealth and the Commonwealth, having received that power, pursuant to the referral power contained in the Constitution, has legislated under the Family Law Reform Act in respect of ex-nuptial children. It follows from that that the applicant father’s objection to jurisdiction has no merit, thus both it and his application for leave should be dismissed and I now propose to do so.”

GROUNDS OF APPEAL

1. The grounds of appeal as set out in the Amended Notice of Appeal are as follows:-

“1.       Morgan J lacked the competence to properly deal with the case.

2.Morgan J fabricated that Nicholson CJ on 28-2-1995 and Dawson J of the High Court on 21-9-1995 had both held that by the Commonwealth Powers (Family Law – Childrens (sic)) Act 1986 the Family Court had legal jurisdiction as neither refered (sic) specifically to the 28-10-1987 date when this came in force? (sic)

3.The Family Court never had legal jurisdiction in regard of the child G in regard of the Commonwealth Powers (Family Law – Childrens (sic)) Act 1986 as this Act specifically excluded children under guardianship of the Supreme Court of Victoria.

4.Morgan J lacked the competence to appropriately check legislation she refered (sic) to.

5.The Victorian Government lacked any legislative powers under s16 of the Victorian Constitution as to refer any powers to the Commonwealth as the Act specifically makes clear “all laws whatsoever in and for Victoria” as such excludes the referal (sic) of legislative powers to another Parliament

6.Morgan J lacked the legal jurisdiction to deal with a CONSTITUTIONAL MATTER.

7.       Morgan J no more but (sic) sought to deliberately deny justice to be done.

8.That Morgan J (and so all other judges of the Family Court of Australia) never was validity (sic) appointed as a judge of the Court this as the Governor General lacked any valid Letters of Patent (as a representative of the Queen) as to appoint a judge of the Family Court.

9.That the Governor General being a “foreigner” under English law could not have been appointed as Governor General to act for and/or on behalf of the Queen of Great Britain and so lacked any duly (sic) and proper powers as to give “Royal Assent” to any bills as is deemed required under the Australian Constitution (as assumed being the applicable constitution).  As such no proper and due “Royal Assent” was ever given to the Family Law Bill know (sic) now as the Family Law Act 1975.

10.That contrary to the inherited legal provisions of English Law, by the provisions of the 1688 Bill of Right (sic) no catholic (sic) can hold office for the Crown or otherwise, the legislators voted upon passing the Family Law Bill (as then known) including catholic (sic) members of Parliament making the vote invalid and so the passing of the bill.

11.That the Letters of Patent signed by the then Prime Minister B. Hawke were invalid (only a Monarch can do so) and could not overcome the earlier invalidity of the “Royal Assent” purportingly (sic) given to the Family Law Bill (Family Law Act 1975).

12.That with the English Parliament having enacted in 1972 that Australia is a foreign country then the Queen of Great Britain (being also a member of the British Parliament) could not then be deemed to have any constitutional powers to give any further “Royal Assent” by her self or via a purported appointed Governor General.  For this the Governor General possessed no power to give Royal Assent to the Family Law Act 1975.

13.That where the High Court of Australia ruled that H. Hill as a person having foreign alliance to the English Crown was in eligible (sic) to be a Member of the Parliament of Australia then this must be deemed to apply likewise to the Queen of Great Britain where the Queen as an appointee of the British Government has the duty to advise the British Parliament of any matter of concern.  As such no Royal Assent could be given to validate the Family Law Act 1975.

14.No referendum was held to validly appoint a Queen of Australia and so any purported “Royal Assent” given (Family Law Act 1975) then must be deemed null and void

15.That by virtue of Australia having been a member of the League of Nations and the later created United Nations it is and was required to be an independent nation for which a foreign country as like (sic) Great Britain had no power as to have legislative or other powers in regard of (sic).  That the Queen of Great Britain as appointee of the British Parliament therefore had no position as to give “Royal Assent”, or have a Governor General doing (sic) so by delegated powers, as such “Royal Assent” clearly would be given by the Queen as a Member of the British Parliament which would breach the conditions of Membership to the then League of Nations and the now United Nations.  As such the Family Law Act 1975 is null and void also for this.

16.That at the time Australia having become an independent nation (republic) by being accepted to sign the treaty of Versailles then Australia (sic) Parliament had a duty to seek from the Australian electorate to have either the existing Australian Constitution accepted to continue or have a new constitution drawn up which would reflect the true independence of Australia as a member of the League of Nations.  The lack of a new constitution providing for another way to appoint judges as such invalidate (sic) all judicial appointments made since.

17.That none of the current members of the High Court can be deemed to have been validity (sic) appointed as the respective Governor Generals lacked any position as (sic) to do so where there was (sic) no valid Letters of Patent and no constitutional provision that a judge to the High Court could be appointed without the involvement of the Crown.

18.That none of the current and so many of the past parliamentarians, since 1919, as Ministers of the Crown can be deemed to be validity (sic) appointed as the Governor General lacked any position to duly appoint any Member of Parliament to act as Minister for the Crown or so to duly enact the Family Law Act 1975.

19.That all and any elections held since 1919, in Australia must be deemed to have been null and void where they were conducted under the umbrella of alliance to the Queen of the British Parliament without the Australian electorate first having been provided with an opportunity as to vote by way of referendum if it wanted to continue with the then existing Australian Constitution or otherwise as to enable the electorate to vote upon a change of the constitution and so the manner in which members of Parliament and Judges of the court were/are appointed.  As such legislative provisions passed also be deemed null and void.

20.That neither any of the Family Court judges or (sic) any judge of the High Court could be deemed competent to hear this matter as it would be bias for any judge to adjudicate on this matter where basically each and every judge might be DEEMED to have a self interest as to defeat my appeal grounds as such I state that only the International Court of Justice in The Hague in The Netherlands can be deemed to be a proper Court to hear this matter upon the provisions of the League of Nations (as was then applicable) and the now United Nations provisions.  As such judges are bias (sic) or deemed to be bias (sic).

21.That the Family Court has proven to be a (sic) lawless and/or can be deemed to be a Court ignoring the intentions of the legislators and Acts legislated by them has been or can be deemed to have been proven by the fact that judges have openly made announcements from the bench such as “This Court doesn’t want to be bogged down in legal technicalities” (Strauss J), “Does it matter that she gave false evidence” (Emery J), “She can live in de facto relationship with 5 man (sic)” (Emery J) as well as Hase J having pre-signed and so pre-determined on 21-12-1994 my 21 (sic) imprisonment sentence as well as many other judges having made similar comments that even the Chief Justice Nicholson CJ severely attacked my person and indeed questioning (sic) my person for wanting to publish matters where then the Chief Justice condemning such intentions to publish then personally allows matters to be published via the internet albeit obviously in a total different version then (sic) what the true facts and circumstances are.  As such I do not accept that any judge can be deemed to be my “peer” as is required under the provisions of the 1215 Magna Carta charter.

22.That the judges of the High Court of Australia on 5 previous occasions rather then (sic) to hear my cases upon the legal provisions (as assumed then) to exist such as the provisions of the “Commonwealth Powers (Family Law – Childrens (sic)) Act 1986” each and every High Court Judge involved neglected to check the legal provisions of the said Act and merely, so to say, was willing to rubber stamp (sic) what ever (sic) the Family Court had decided irrespective if this was just and proper under the true legal provisions of the said Act.  As such, the judges of the High Court appears (sic) to me to have demonstrated that they cannot be trusted to provide a litigant in person such as my self (sic) a FAIR AND PROPER HEARING upon basis of the law but rather appears to me, so to say, merely rubberstamp what ever (sic) the Family Court decides irrespective of what under the said Act was and is legally applicable.

23.That Morgan J being faced with a Constitutional jurisdictional issue rather then to actually check each and every relevant Act that might be deemed to be applicable merely relied upon what another judge previously had stated and as such proving that not the application of law but rather a DENIAL of a FAIR AND PROPER HEARING is what was provided to me.  As such I question rightfully (sic) the ability of any other judge to appropriately adjudicate where any other judge refuses to take matters as to upon the true legal meaning of relevant legislations (sic) and not go by what ever (sic) some other judge may have fabricated as to, so to say, rail road (sic) my previous Objections to Legal Jurisdiction of the Family Court.

24.That the Full Court on various occasions, so to say, railroaded my past appeals upon fabricated and/or non applicable rules and regulations etc causing me to question the intriguety (sic) of any Family Court judge in particularly where for example Guest J on 11-8-1999 denied from the bench having 2 judgments outstanding since 19-1-1999 only when having discovered that indeed I was correct then grossly attacks my person in total conflict of what the same judge stated on 19-1-1999 about my person.  Also, Guest J having on 11-8-1999 stated to order the 19-1-1999 transcript to be provided to me and despite numerous reminders to the Associate of Guest J this transcript was not forthcoming.  As such it appears that, to my experiences, a judge of the Family Court can’t be trusted as to what he states from the bench and is willing to attack a person (sic) personal standing as a way to, as I see it, get back upon (sic) the unrepresented person for having proven (sic) to have been wrong.  As such, Guest J (sic) conduct on 11-8-1999 and the subsequent conduct of Morgan J on 12-8-1999 as to fabricate some legal provision commencing on 1-4-1988 rather then to check the actual legislated provisions of the Commonwealth Power (Family Law – Childrens (sic)) Act 1986 make it appear to me that as like (sic) Hase J did on 21-12-1994 the orders are made (fabricated) prior to the hearing having actually been held and the reason (sic) of judgments are no more but (sic) some tool as to try to justify the orders made rather then (sic) being a due and proper set out of the applicable legal provisions.  For this the 12-8-1999 orders never reflected legislative provisions.

25.That case law dictates that the purported consent Nicholson CJ referred to in the 28-2-1995 reason of judgment was null and void, as a Court cannot invoke legal jurisdiction, regardless of consent of the parties, where it has none on the first place!

26.That after the Full Court on 28-2-1995 dismissed my appeal and rejected my submissions that I was entitled to “remission of sentence” and Hase J had failed to comply to the provisions of s112AL then afterwards Form 53 was amended to include that a person sentenced is not a federal prisoner and s112AL was omitted.  As such, this might underline that I was right after all but the judges could not care less having abused and misused their reason of judgment to slander my person (even so the Chief Justice personally presided over the appeal then) and so I can hardly trust any judge to do better where Nicholson CJ as the Chief Justice ignored (sic) to apply legal provisions as was (sic) then relevant.  As such I view I can’t be provided with any FAIR AND PROPER TRIAL in the Family Court

27.That it isn’t relevant what legislation the Commonwealth parliament may have enacted or how defective (sic) it may have legislated as to give a misconception to a judge of the Family Court as to which children were or were not falling under Commonwealth legislative provisions as Morgan J as a judge of the Court must be deemed to have had a legal obligation as to have to check the very legislative provisions upon which the Commonwealth relied to have gained the legislative provisions.  As such, it wasn’t relevant if the Commonwealth enacted the Family Law Amendment Act 1995 etc. but rather the first issue was and should have been for Morgan J to check the provisions of the Commonwealth Powers (Family Law – Childrens (sic)) Act 1986 and only if this legislation provided the Commonwealth with legislative powers of (sic) the child then and only then could Morgan J embark upon what the Commonwealth had legislated.

28.That the High Court previously indicated that somewhere between 1919 and 1986 Australia became an independent nation.  As such where the High Court lacked (sic) to define this appropriately it seems that the High Court lacks the competence to appropriately determine when Australia became an independent nation and so in what year and upon what legal provisions.  As such, the High Court appears unable to determine if the Family Law Act 1975 is a valid legislation as the validity of the Family Law Act 1975 might also depend upon when Australia became a true independent nation.  For this only the International Court of Justice, on (sic) basis of international law, might be able to determine the validity of the Family Law Act 1975 and indeed the validity of the appointment of judges, the validity of the Australian Constitution, etc.”

SUBMISSIONS ON APPEAL

1. In support of the various grounds set out in the Amended Notice of Appeal, the appellant relied, inter alia, upon the following documentation:-

(a)       Address to the trial Judge appearing at AB 33 to 61;

(b)The Notice filed by him pursuant to the provisions of s.78B of the Judiciary Act 1903 (Cth) appearing at AB 76 to 149;

(c)Address to the Full Court filed 11 January 2000;

(d)Supplement Address to the Full Court filed 6 March 2000;

(e)Summary filed 11 January 2000; and

(f)List of Authorities filed 11 January 2000.

1. In addition, the appellant made oral submissions to the Court.  We do not propose to refer to the totality of his submissions, but in coming to our decision, we have considered the totality of those submissions, both written and oral.

1. The appellant submitted that the background relevant to this appeal can be summarised as follows:-

1. On 1 October 1986, as a result of an order made in the Children’s Court at Morwell, G was placed in the care of the relevant Victorian State Minister.  On 2 October 1987, as the result of an appeal to the Supreme Court of Victoria, an order was made on an interim basis that G be a ward of the Court and that the father, on an interim basis, have the sole custody of the child.  On 23 February 1988, O’Bryan J. of the Supreme Court of Victoria ordered that G remain a ward of the Supreme Court of Victoria, that the father have sole custody of the child and that the child’s mother have access to the child as defined in the order.  In May 1988, the order made on 1 October 1986 in the Children’s Court was discharged.  On 23 May 1990, Hase J, in the Family Court of Australia, made consent orders, including an order, Order (2)(b), discharging the child from the wardship of the Supreme Court.  The validity of that order is challenged by the father in this appeal and it provides:-

“That the order of The Honourable Mr. Justice O’Bryan of the Supreme Court of Victoria made the 23rd day of February, 1988, by which the child G born the 28th day of March, 1985, was committed to wardship of such Court, be discharged;”

1. At the time of the making of the orders, on 23 May 1990, both the father and the mother were represented by counsel.

1. Thereafter, as can be seen from the Chronology filed by the father on 11 January 2000, there have been numerous applications dealt with by the Court.

1. The father contends, as he did before Dawson J, that the Family Court does not now, and at no relevant time did, have jurisdiction to make parenting orders in relation to his daughter G.  The primary submission of the father before us was that the lack of jurisdiction asserted by him stemmed from the fact that the child was a ward of the Supreme Court of Victoria. 

1. In our view, the father’s submissions require consideration of three matters. Firstly, whether the reference of power from the State of Victoria to the Commonwealth excludes the making of laws relating to children who are wards of the Supreme Court of Victoria. Secondly, whether the provisions of s.60H of the Family Law Act 1975 (Cth) preclude the Family Court from making orders in relation to such children. Thirdly, the significance of the cross-vesting legislation. We shall consider each of the three matters seriatim.

The reference of power as a source of jurisdiction

1. On 16 December 1986, the Commonwealth Powers (Family Law – Children) Act 1986 (Vic) was assented to and it came into operation on 28 October 1987.  Section 3 of that Act as originally enacted provided:-

“(1)The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act comes into operation and ending on the day fixed, pursuant to section 4, as the day on which the reference under this section will terminate, but no longer namely –

(a)the maintenance of children and the payment of expenses in relation to children or child bearing;

(b)       the custody and guardianship of, and access to, children.

(2)The matters referred by sub-section (1) do not include the matter of the taking, or the making of provision for or in relation to authorizing the taking, of action that would prevent or interfere with -

(a)a Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a law of the State, or any other person or body having or acquiring the custody, guardianship, care or control of children under a provision of an Act specified in the Schedule; or

(b)the payment of maintenance in respect of children who are in such custody, guardianship, care or control; or

(c)the jurisdiction of the Supreme Court to make orders in respect of children who are in such custody, guardianship, care or control; or

(d)the jurisdiction of a court of the State, under a provision of an Act specified in the Schedule, to make orders, or take any other action, in respect of -

(i)        the custody, guardianship, care or control of children; or

(ii)       access to children or the supervision of children.

(3)      In the preceding provisions of this section -

(a)the references to children shall be construed as references to persons under the age of 18 years; and

(b)the references to the maintenance of, and the payment of expenses in relation to, children shall be construed as including references to the maintenance of, and the payment of expenses in relation to, persons who have attained that age and have special needs in respect of maintenance or expenses by reason of being engaged in a course of eduction or training or by reason of a physical or mental handicap; and

(c)the references to an Act specified in the Schedule shall be read as references to that Act as amended and in force from time to time, and as including a reference to any Act or Acts replacing that Act and as amended and in force from time to time.”

1. The reference of power was accepted by the Commonwealth by virtue of the Family Law Amendment Act 1987 (Cth). Thereafter, the Family Law Act enabled the Family Court to exercise jurisdiction in relation to the guardianship, custody and access of all children, wether or not children of a marriage.

1. The father submitted, however, that on its proper construction, s.3(2)(c) of the Commonwealth Powers (Family Law – Children) Act 1986 (Vic) excludes from the reference children who are in care, that the child G was in care as at 28 October 1987 and thus the Family Court did not acquire jurisdiction to make orders in relation to her.  In addition, he submitted that the effect of s.3(2)(c) was to prevent the Family Court from making any order which would interfere with the jurisdiction of the Supreme Court of Victoria to make orders in respect of children such as G who are in the custody, guardianship, care or control of any of the authorities referred to in s.3(2)(a).

1. He then referred us to the provisions of s.60H of the Family Law Act as it was prior to the coming into operation of the Law and Justice Legislation Amendment Act 1992 (Cth) and to other sections which provided that the new s.60H(1), now s.69ZK(1), would apply in the States only after a relevant proclamation had been made. The only proclamation made to date relates to Tasmania and thus the law applicable in Victoria and thus to the present case continues to be the old s.60H, which provides:-

“(1)A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be.

(2)Nothing in this Act, and no decree under this Act, affects:

(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed in the custody of, or under the guardianship, care and control or supervision of, a person;

(b)any such order made or action taken;

(c)the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child;

(d)an order of the kind referred to in paragraph (c); and

(e)the operation in relation to the child of a child welfare law.”

1. Having regard to the wording of s.69ZK, however, in our view, nothing turns upon this distinction for the purposes of this case.

1. The father’s submission on this subject do not appear to us to be correct. Section 3(2)(c) of the Victorian Act preserves the jurisdiction of the Supreme Court to make orders in respect of children “who are in such custody, guardianship, care or control”. This phrase, which is also included in s.3(2)(b), refers back to s.3(2)(a) which refers to persons and bodies having or acquiring the custody, guardianship, care or control of children “under a provision of an Act specified in the Schedule”. At 23 May 1990, the Acts specified in the Schedule were the Children’s Court Act 1973 and the Community Services Act 1987. We note that the statutes to which the Schedule refers at the present time are the Adoption Act 1984 and specified provisions of the Children and Young Persons Act 1989. The Supreme Court’s wardship or inherent jurisdiction is not based on any of those Acts, being founded in the Supreme Court Act 1958 (Vic). It is important in this respect to distinguish between wardship of the State under child welfare legislation and wardship of the Court under the inherent jurisdiction of the Supreme Court.

1. It would appear, therefore, that the reference of power in ss.(1) is not qualified in the manner asserted by the father.  As a result of the reference of power, the Commonwealth acquired legislative power in relation to the custody and guardianship of and access to children not being children of a marriage, including children who were wards of the Court as a result of the exercise of its wardship jurisdiction by the Supreme Court.

The application of s.60H of the Family Law Act

1. The second matter relates to the impact of the old s.60H of the Family Law Act. That section referred to “a child welfare law”, a term defined in the former s.60 as meaning “a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.” The prescribed laws are set out in Schedule 5 of the Family Law Regulations. At 23 May 1990, the Victorian laws prescribed in the Schedule were the Adoption Act 1984, the Children’s Court Act 1973, the Community Services Act 1970, the Mental Health Act 1959, the Mental Health Act 1986 and specified provisions of the Maintenance Act 1965. Although nothing turns thereon, we note that the Victorian laws prescribed in the Schedule at the present time are the Community Services Act 1970, the Maintenance Act 1965, Mental Health Act 1986 and, subject to ss.3(2A) of the Commonwealth Powers (Family Law – Children) Act 1986, the Adoption Act 1984 and specified provisions of the Children and Young Persons Act 1989. As none of these Acts relate to the wardship jurisdiction of the Supreme Court of Victoria, it follows that s.60H is not relevant for present purposes.

1. Our tentative view is therefore that the relevant legislation does not limit the reference of power from the State of Victoria relating to the custody and guardianship of children by reference to the wardship jurisdiction of the Supreme Court of Victoria, nor does the old s.60H of the Family Law Act 1975 (Cth) have any application to the exercise of jurisdiction under the Act relating to children who are wards of the Supreme Court or otherwise affected by orders made by the Supreme Court under its inherent wardship jurisdiction. It follows that the Family Court had jurisdiction on

   
   

   23 May 1990 to make parenting orders relating to the child whether or not she was a ward of the Supreme Court of Victoria.  However, because these matters were not fully argued before us, we would emphasise that our views are tentative and that we refrain from expressing a concluded view.

The cross-vested legislation

1. The father referred to the various cross-vesting statutes, as a consequence of which Hase J. was able to exercise the jurisdiction of the Supreme Court of Victoria and make Order 2(b) on 23 May 1990 to which we earlier referred.  However, the father drew our attention to the decision of the High Court in Re Wakim; Ex parte McNally (supra) where the Court held that the cross-vesting legislation was invalid at least insofar as it purported to confer state judicial power on federal courts, including the Family Court.

1. He then referred to the Federal Courts (State Jurisdiction) Act 1999 (Vic) which came into operation on 15 December 1999 and, in particular, to s.6 which provides:-

“The rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if -

(a)       each ineffective judgment of -

(i)the Federal Court of Australia, otherwise than as a Full Court of the Federal Court of Australia; or

(ii)the Family Court of Australia, otherwise than as a Full Court of the Family Court of Australia -

had been a valid judgment of the Supreme Court or, in the case of an ineffective judgment given or recorded on or after 7 June 1995, of the Trial Division of the Supreme Court; and

(b)       each ineffective judgment of -

(i)        a Full Court of Federal Court of Australia; or

(ii)       a Full Court of the Family Court of Australia -

had been a valid judgment of the Full Court of the Supreme Court or, in the case of an ineffective judgment given or recorded on or after 7 June 1995, of the Court of Appeal.”

1. In the definition section of that Act, s.3, “judgment” means a judgment, decree or order, whether final or interlocutory, or a sentence.  Thus, all references in the Act to judgments encompass orders.

1. The father submitted that, on its proper construction, the invalidity of the order made by Hase J. was not saved by the reason of the operation of the Victorian Act.  If the tentative view which we have expressed is correct, namely that the jurisdiction of the Family Court to make orders relating to G is founded in the legislative referral of power by the State of Victoria, accepted by the Commonwealth, then the Family Court’s jurisdiction does not depend upon the cross-vesting legislation.  The orders of Hase J. were not “ineffective orders” that needed to be saved by the 1999 legislation. 

1. The Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) came into operation on

   
   

   1 July 1988, as did the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). Section 4 of the Victorian Act invested the Family Court of Australia with original jurisdiction with respect to State matters. Thus, on 23 May 1990, Hase J. was able to exercise the jurisdiction of the Supreme Court of Victoria. Accordingly, in making orders on 23 May 1990, he was able to exercise the jurisdiction of the Supreme Court of Victoria as a consequence of the cross-vesting power, even if he did not have jurisdiction to make parenting orders in relation to G as a consequence of the referral. He was thus able to make an order discharging G from wardship of the Supreme Court of Victoria.

1. The father submitted that, on its proper construction, s.6 did not validate ineffective judgments, as defined by the Act, made by the Family Court prior to 1 June 1995. He clearly meant to say prior to 7 June 1995, and we will interpret his submissions as such. Thus, he submitted that Order 2(b) made on 23 May 1990 was an ineffective judgment or order as defined by the Federal Courts (State Jurisdiction) Act 1999 (Vic) which was not validated by that Act and hence G remained a ward of the Supreme Court of Victoria.

1. In our view, s.6 of the Federal Courts (State Jurisdiction) Act 1999 (Vic) cannot be construed in the manner submitted by the father. The section provides that the rights and liabilities referred to are declared to be and always to have been the same as if an ineffective judgment or order of the Family Court given or recorded prior to 7 June 1995 (otherwise than as a Full Court) had been a valid judgment or order of the Supreme Court of Victoria and if given or recorded after that date, as if it had been a valid judgment or order of the Trial Division of the Supreme Court of Victoria. Thus, Order 2(b) of the Family Court made on 23 May 1990 was effective as if it had been a valid judgment or order of the Supreme Court of Victoria.

1. In discharging the wardship order, Hase J. was not making an order under the Family Law Act but was exercising the parens patriae jurisdiction of the Supreme Court of Victoria by way of the cross-vesting legislation; see Director-General Department of Community Services Victoria v Hallinan (1992) 15 Fam LR 497 and Re Z (1996) 20 Fam LR 651. Thus, G ceased to be a ward of the Supreme Court of Victoria upon the making of the consent order by Hase J. on 23 May 19990.

1. Accordingly, even if, contrary to our tentative view, G’s status as a ward of the Supreme Court precluded the Family Court from making parenting orders relating to her, no such impediment existed after Hase J. made the order of 23 May 1990, since that order discharged the child from such wardship and that order must now be regarded as valid because of the operation of the 1999 Victorian Act, notwithstanding the High Court’s decision Re Wakim; Ex parte McNally (supra).

1. It follows, in our view, that there is no substance in the father’s submissions that the Family Court lacked jurisdiction because the child had been made a ward of the Supreme Court of Victoria.  The child’s status as a ward never precluded the Family Court from making parenting orders and, in any event, that status ceased on 23 May 1990.

1. During the course of submissions, we raised with the father whether the Court has the power to make the declarations sought by him, given the applications before the Court.  As it is not necessary for us to determine that question and as no submissions were made in relation to it, we reserve the question for determination on another occasion.  We would, however, draw attention to the observations of the High Court in Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at 413 and following.

1. No cogent submissions were made to support any of the other grounds of appeal. In particular, no cogent arguments were made to support the submissions relating to bias on the part of judges, the validity of the Family Law Act or that Morgan J. denied the father a fair and proper hearing.

1. We would also point out that in Appeal No. SA55 of 1994, the father agitated before the Full Court the power of Hase J. to discharge the order for wardship made by O’Bryan J. to which we have referred.  The Full Court did not accept his submission that Hase J. was unable, in the circumstances outlined, to make the order which he did.  We would respectfully agree with that conclusion.

1. As none of the grounds of appeal have been made out, we would dismiss the appeal.

ORDER

1. We would order:-

1.        That the appeal be dismissed.

I certify that the preceding 47 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate