Young, G. v Commissioner of the Australian Federal Police

[1992] FCA 922

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JUDGMENT No. ... %&,,l..,z&

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	NG 591 of 1992
GENERAL DIVISION	1

BETWEEN:  GARY YOUNG

Applicant

AND:  COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS OF

THE COMMONWEALTH

Second

CORAM: Burchett J.
PLACE: Perth

DATE : 8 December 1992

SHORT MINUTE ORDERS

THE COURT ORDERS THAT:

Order 36 of the Federal Court Rules.

1. The application for leave to amend the application of

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Gary Young herein be refused.

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2.	The application of Gary Young be dismissed.	I -
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3.	The applicant Gary Young be ordered to pay the costs of	L.
the Commissioner of the Australian Federal Police and the Director of Public Prosecutions.
m:	Settlement and entry of orders is dealt with in	l

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 591 of 1992

1

GENERAL DIVISION 1

BETWEEN:  GARY YOUNG

Applicant

AND :  COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS OF

THE COMMONWEALTH

Second Respondent

CORAM: Burchett J.
PLACE: Perth

DATE : 8 December 1992

REASONS FOR JUDGMENT

BURCHETT J.:

This is a motion for summary dismissal of an application on the ground that it discloses no reasonable cause of action

and is frivolous and vexatious.

Before setting out the claims made by the application

thus attacked, it is convenient to explain the background. On

14 August 1980, Kearney J. made an order in the Supreme Court

of New South Wales granting custody of a child known as Grytt Michael Young to his mother, a Miss Jaclunan, with access to his father the applicant. The father and mother had not married. The applicant appealed against the order, but the unreported judgment of the Court of Appeal Division of the Supreme Court of New South Wales delivered by Hope J.A., on behalf of the Court consisting of Hope, Glass and Samuels JJ.A., on 24 November 1980 reveals that the applicant had disappeared together with the child after a period of access on 15 November 1980. The Court dismissed the applicant's appeal with costs and allowed with costs a cross-appeal against the order granting him access. The judgment of Hope J.A. also contains the following:

"The appellant, by taking the child in the way in which he did from the care and custody of the respondent and by absconding, has prima facie committed a contumacious contempt of court. ... In the circumstances the court orders, pursuant to Part 55, rule 10, that a warrant issue for the arrest of the appellant and his detention in custody until he is brought before the court to answer the charge."

It was not until May 1986 that the child, then aged nine
and one half years, was located in California, as an

incidental result of custody problems concerning further

Miss Jackman recovered actual custody of the child through	children fathered by the applicant in the United States, and
proceedings in the United States courts.
In 1990, the applicant is alleged to have fled to New Zealand with his two younger children, and a warrant for his arrest was issued out of the United States District Court, California. The applicant returned to Australia on 14 April 1992, when he was arrested at Sydney Airport under warrants issued by the Australian Federal Police. He has since been granted bail, and faces charges in the St James Local Court alleging offences committed in 1980. There are two charges. One alleges a breach of S. 70A(1) of the Familv Law Act 1975 relating to the removal of a child from the Commonwealth of Australia (I am informed that it is proposed on the next occasion when this matter is dealt with in the Local Court to seek to amend this charge to refer to S. 70 and not S. 70A, s. 70 in its then form being the applicable provision at the date of the alleged offence). The other charge alleges an offence under S. 10 of the PassDorts Act 1938 relating to the making of false statements for the purpose of obtaining an Australian passport - the allegation being that the passport used when the child was abducted to the United States was obtained by the applicant in the false name "Gregory Daniel Thatcher".
On 16 April 1992 the warrant issued in November 1980 by order of the Court of Appeal Division of the Supreme Court of New South Wales was reissued by the Registrar of the Supreme
Court, and the applicant was on 22 April 1992 arrested and charged with contempt of court.
It appears that the prosecution has taken the view that the proceedings in the Local Court ought to be delayed pending the determination of the proceedings in the Supreme Court. The applicant contends, on the contrary, that the prosecution should proceed without delay. He claims to be prejudiced by the course adopted, although it is not clear to me in
precisely what way.

The applicant's application seeks the following relief:

"1.	The court declare the rights and duties of the parties under the Sex Discrimination Act 1 9 8 4
(and in particular S. 1 2 ( 1 ) and S ( 1 ) and ( 2 ) ) .
2 .	Issue a writ of habeus [sic] corpus."

With the application there does not appear to have been filed anything closely resembling a statement of claim. However, a document describing itself as an "affidavit" and a "petition for writ of habeus corpus and for order in declaratory relief" was filed. This document commences:

"Petitioner seeks release from constructive custody based upon the factual situation whereby males are prosecuted for the offenses [sic] outlined but woman

[sic] are routinely not prosecuted in the same

numbers thereby discriminating against male parents

by Gender [sic] discrimination.

That Child custody orders issued from the NSW EQUITY

Court during the period in which an order described	herein was issued routinely denied such custody
orders to male parents, in violation of federal and State laws against Gender discrimination Thus rendering such orders void.
Petitioner seeks a declaration of the rights and duties of the parties with respect to discrimination by Gender against male parents.
Petitioner seeks release from constructive custody by issuance of a writ of Habeus Corpus and dismissal of all prosecutions against him as being prosecuted in violation of federal and state law prohibiting Gender discrimination."

The document goes on to set out that the applicant faces proceedings in both state and federal jurisdictions and to indicate the nature of those proceedings. It then alleges: "Respondent [sic] suffers his fate as the result of Discrimination by SEX" and proceeds to repeat the previous allegation that orders of the kind made by the Supreme Court in its Equity Division are made so as routinely to involve discrimination based upon what the applicant calls gender. It is alleged: "Petitioner was UNABLE TO FIND ONE SINGLE CASE where a male person was awarded custody of a child after a contested hearing in the NSW EQUITY COURT". There is a statement that a particular police officer conceded that prosecutions "are routinely made against male persons". Orders are sought requiring the Supreme Court of New South Wales to "keep accurate records of the outcome of all custody cases" and to audit these records annually; and unless 50% of custody cases are decided in favour of males, an order is sought setting up a special school "to re-educate NSW Equity Court Judges in the realities of gender discrimination". A

Director of Public Prosecutions and the Australian Federal	similar education programme is sought in respect of the
Police. An order is sought declaring the order of Kearney J. to be illegal; for the release of the applicant; and for an audit programme to be inaugurated "which will show accurately the exact number and gender of people prosecuted for family law offenses".
By a further document filed 17 September 1992 the applicant alleges the charges against him in the St James Local Court are only "back up charges". He claims that for this reason they ought to be dismissed.
At the hearing of the motion for dismissal, the applicant sought leave to amend his application to convert it into a representative action. He claimed to represent fathers deprived of custody in similar circumstances, and other persons held on "back up charges".
It seems to me to be quite obvious that the documents filed raise no reasonable cause of action of any kind. There would be no purpose in granting leave to amend in the way the applicant requests. Nothing in the Sex Discrimination Act 1984, nor anything in the Human Riqhts and Equal O~~ortunity
Commission Act 1986, to which the applicant made reference in argument, suggests any ground whatever for suspecting that the order of Kearney J., affirmed by the Court of Appeal, may have
been in any way invalid. Nor has anything been pleaded, however informally, in the documents filed by the applicant
which raises any question in respect of that order over which this court would have jurisdiction. It is equally clear that no basis has been suggested for interference with the proceedings in the Local Court. It is, of course, clear that to justify interference with criminal proceedings of that kind, something more must be shown than merely that a defence can be suggested, or that some error in procedure is feared:

Sankev v. Whitlam (1978) 142 CLR 1; Lamb v. Moss (1983) 49 ALR
533.

I make the following orders: I refuse the application for leave to amend; I dismiss Gary Young's principal application; and I order the applicant Gary Young to pay the costs of the Director of Public Prosecutions and of the Commissioner of the Australian Federal Police.

I certify that this and the preceding six (6) pages

are a true copy of the Reasons for Judgment herein

of his Honour Mr Justice Burchett.

Associate:  'gALv{-,-,

Date: 8 December 1992

Applicant appeared in person.

Counsel for the Respondents:  Mr G.T. Johnson

Solicitor for the Respondents:	Australian Government Solicitor
Date of hearingr	6 October 1992