Schorel, Ex parte; Re Nicholson CJ & Ors M34/1995 [1995] HCATrans 327 (21 September 1995)

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Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

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O/N 4356

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M34 of 1995

RE: THE HONOURABLE NICHOLSON CJ OF THE FAMILY COURT OF AUSTRALIA FOR AND ALSO ON BEHALF OF ALL PERSONS ACTING ON HIS BEHALF

ex parte:

GERRIT HENDRIK SCHOREL

DAWSON J (in Chambers)

AT MELBOURNE, THURSDAY THE 21ST DAY OF SEPTEMBER 1995

HIS HONOUR: Now, Mr Schorel, you appear in person.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: Yes. Now, these are applications for orders nisi for a writ of prohibition and a writ of certiorari.

MR SCHOREL: Yes, your Honour, that is right.

HIS HONOUR: Well, now, you are familiar with the rules which we impose are you not?

MR SCHOREL: Yes, your Honour.

HIS HONOUR: That is a time limit will be imposed on you.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: And I will give you twenty minutes on this occasion to make your submissions.

MR SCHOREL: Yes, your Honour. What I have sought to do, your Honour, is I faxed last night what I like to say to your Honour, I had it pre-typed and I do not know if your Honour has and it makes it may be very expedient rather than saying it all because - - -

HIS HONOUR: Well, if you hand that up and resume your seat and I will read that.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: And then you can add what you want to add to that.

MR SCHOREL: Yes, your Honour. And I have what I refer to your Honour, the original application which I said from - - -

HIS HONOUR: Yes. Yes, now, Mr Schorel.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: These matters which you raise apart from the decision of the Full Court of the Family Court are matters which you have raised with me before in proceedings, are they not?

MR SCHOREL: Yes, your Honour, but in that sense then not all matters were raised for instance like there was no transfer of jurisdiction ever applied.

HIS HONOUR: Well, you did raise that before, you - - -

MR SCHOREL: No.

HIS HONOUR: - - - you said that the Supreme Court had jurisdiction because of the wardship order.

MR SCHOREL: That was a different one, it was - the argument then was on the basis of that section 102 does not, is not a matter that was ever provided under cross-vesting and that is excluded by section 68, but what I have raised now in this case is that in fact having the application, the original applications which were found that in fact there was never any application made in fact by either party for the transfer of the case from the Supreme Court to the Family Court as is required by order 30A rule 3 and therefore if there was no transfer of the case the case was therefore never was transferred under the cross-vesting Act.

HIS HONOUR: Of course, the Family Court says that it has jurisdiction without any need for a transfer.

MR SCHOREL: Well, that, your Honour, that the Family Court it is - it cannot intervene in a court case which was in the Supreme Court found wardship because the Family Court has no wardship provisions. Therefore, if it wants to intervene - - -

HIS HONOUR: Well, now, that of course is the argument which you did raise previously with me.

MR SCHOREL: Yes.

HIS HONOUR: Yes.

MR SCHOREL: That is right, but I said if there was a cross-vesting application then your Honour could have said, well, it was a cross-vesting application, it was transferred therefore that enables the Family Court to intervene in that section 102, however, if there is no cross-vesting application therefore the wardship issue was a State issue and therefore the Family Court to obtain jurisdiction to set aside any orders it must first have a cross-vesting application, so - and that is what is required by law and that is what I have now researched, so that is one of the many matters.

Now, your Honour also mentioned last time that because of the ...(indistinct)... etcetera, therefore this court could not intervene. Of this current moment, and I know cases pending nothing whatsoever in the Family court, so therefore this court now is not restrained by having to say, look, we first let - - -

HIS HONOUR: But, Mr Schorel you have an application in this court for special leave to appeal against the decision of the Full Court of the Family Court, do you not?

MR SCHOREL: That is on foot, right. Now, the point is what is being outlined to this court now is the fact that the Family Court on the wink of an eye issues ex parte orders and not what I refer to quickly as like a warrant and ex parte order, there is no trial there is no notification suddenly and this is the problem with the Family Court.

HIS HONOUR: Listen to me for a moment. Where you have an application for special leave to appeal on foot which deals with the matters that you seek to raise in your application for prerogative relief, the court is not inclined to grant prerogative relief. You should pursue your application for special leave to appeal, first.

MR SCHOREL: What I am trying to say, the appeal books are at this moment settled in the sense that it is in the process now of being compiled. The Registrar has indicated what is required for an appeal index etcetera, and that is all being organised and they are to be filed on 20 October ...(indistinct)... but the point is that in the mean - - -

HIS HONOUR: But let me make myself clear that prerogative relief is discretionary and a court does not exercise its discretion in favour of someone who has an alternative means of obtaining relief.

MR SCHOREL: But the alternative means which your Honour I was referring to as to whether or not special leave to appeal is being granted.

HIS HONOUR: Precisely.

MR SCHOREL: But that is a different issue in that sense that the Family Court, the matter which is before the court under the special leave to appeal relates to a particular decision of the court for which special leave to appeal is sought. It does not relate to other matters which are not subject to the special leave to appeal and this is the problem with the Family Court so what I am here for today is not only to that particular issue because there are in fact two applications for special leave to appeal on foot before the High Court.

It is that in general I seek an order from this court now that the Family Court does not as it did in 1983 when I filed my original application start making all kinds of orders and then cause me a huge outlay of cost to fight legalities, but this court says, look, Mr Schorel has placed his case before this court and please stop doing anything now and give the High Court now the chance to first to determine whether or not the case has reasonable justification to proceed, and this was the problem because when I came before Joske J, on 4 June 1993 his Honour then said to me, but Mr Schorel, you called an application before the High Court outstanding so let the High Court deal with it and then two months later his Honour convicted me on the same issue he refused to deal with because the High Court is going to deal with it, okay that conviction was overturned then, but this is the problem.

So in other words while the High Court process takes time, in the meantime I am being convicted having to fight huge legal cost which is well beyond my ...(indistinct)... so definitely I am denied justice and nobody can make - the goal terms are served of everything. If this High Court later on say, yes, Mr Schorel, you had a case, this is what the issue is about. It is that this matter is not just the issue of my special leave to appeal which is before the court outstanding, it is in general the Family Court I am saying that the Family Court could now, tomorrow, put me back in Court again, start all litigation regarding legal jurisdiction etcetera and just convict me again on ex parte hearings.

They can again have kids arrested by Federal Police which they have done in the past without giving me any avenue, opportunity to contest this. This is what I am saying, the Family Court in this case I am saying it has no legal jurisdiction and while this is apart from my outstanding case it does not in itself limit the scope of the Nicholson CJ, it does not limit him because Nicholson could start all kinds of issues against me irrespective of doubts and in ...(indistinct)... and even if this court were to say, Mr Schorel, you have no issue with that, I would seek leave to appeal against that appeal, but the court might find that my order, case outstanding has merit, and therefore I am saying it is not for me to come every time here to this court and say, no, I put this one but, and this one.

What I am saying is please let me be free and my daughter in particular, free of any harassment from the Family Court, right. I am saying the court never invoked a legal jurisdiction in accordance to the requirements, the legal requirements. Now the Chief Justice goes - - -

HIS HONOUR: But, Mr Schorel, these - - -

MR SCHOREL: Yes.

HIS HONOUR: - - - are matters which you have already raised - - -

MR SCHOREL: Yes.

HIS HONOUR: - - - with me in this court and in which rulings have been given against you. It was in matters, matter M4 of 1995.

MR SCHOREL: Yes.

HIS HONOUR: And matters M91 and M93 of 1994. Now, in those matters you raised exactly the same contentions.

MR SCHOREL: Yes, but, your Honour, I did not raise it on the issue that there was no cross-vesting application made.

HIS HONOUR: Well, I hear what you say about that, yes.

MR SCHOREL: Because I only found today, I realised that yesterday about that those applications, because when I have relocated them yesterday and I said I mean that I raised the issue that it was in section 102 and I think that what his Honour, Nicholson CJ, I read his reason of judgment, his Honour did not in fact raise the issue that there was no such application made because it was never raised on the Full Court in February because I never ever realised it then. So that is an issue which I have just recently now discovered now myself.

HIS HONOUR: But what you have been asking for all along is it not, is that there be no further proceeding, that there be an order that there be no further proceeding in matter M2944X of 1989 in the Family Court.

[2.40pm]

MR SCHOREL: That is right.

HIS HONOUR: Yes.

MR SCHOREL: And in that sense, it is not because the same day has got no legal jurisdiction in normal matrimonial matters, but rather that in this case the legal jurisdiction and the case in itself was, and always did, remain in the Supreme Court. It was never transferred. And you cannot have - the two different jurisdictions have at the same time jurisdiction. In fact, Nicholson CJ, in his reasons for judgment, stated that in the case he would not transfer the matter back to the Supreme Court which I had, in fact, applied for. And your Honour has a copy of that reasons for judgment before you. He would not, because the Supreme Court has no jurisdiction.

Well, in fact, as I point out, if the case was never transferred from the Supreme Court. The case is still in the Supreme Court. Therefore, Nicholson CJ erred in law in that case. Because his Honour never - I attended to the issue nor did I that there was never a formal application made for ...(indistinct)... a transfer. And if that was never done and the files were never transferred, which the Family Court does not have to face they are still in the Supreme Court. So therefore the Court, the Full Court, was misguided on the assumption that there had been a transfer - a proper transfer.

If that was not existing then the wording of his Honour in the reason of judgment is clearly in law incorrectly because two Courts cannot have at the same time jurisdiction in the same matter.

HIS HONOUR: That is not entirely accurate, or at least it is not entirely an accurate way of describing the situation. The wardship jurisdiction of the Supreme Court is an entirely different jurisdiction to the jurisdiction of the Family Court under the Family Law Act.

MR SCHOREL: But that issue apart, I asked this Court, I think, in a previous - and I told somebody my case law. As I pointed out there, this Court made a ruling then, and when it was a case from the Supreme Court ...(indistinct)... Child Welfare State Wardship, then this Court made a ruling and I quoted in my document before this Court, that in this instance the Supreme Court, while normally having legal jurisdiction for custody and access but because it was a Wardship Order, therefore the Full Court - the Supreme Court could only deal with it as a Court, as a matter of an appeal.

I asked that the matter not be put before the Supreme Court on appeal. It could therefore - it had no legal jurisdiction to intervene with the wardship of the person who had it - in that the case the Director-General. I am saying the same legal principle in this case prevails because State Wardship is under State legislation. It is not State Wardship, it is State Court Wardship which is different but it is still ...(indistinct)... which falls under section 60(H) of the Family Law Act. And so what I am saying is that same legal principle which the High Court applied previously as applicable, to say, look, yes, if the child - if there had been no wardship orders from the Supreme Court, there would have been an order ...(indistinct)... which could have been transferred.

In this instance the Supreme Court was appointed to be guardians. They had therefore in different position altogether. They are not just an independent body. They are now part of the proceedings. Mr Schorel, for instance, cannot take the child outside Victoria without the permission of the Supreme Court. That is a part of law, under the Supreme Court Act and the rules and regulations. Now, if the same wardship would be applied to the Family Court, then Mr Schorel could take the child out of Victoria anywhere in Australia.

That would clearly change the definition of wardship. Now clearly that could not be proper because the very wardship ...(indistinct)... the Supreme Court made clear that the mother was not allowed to take the child out of the State of Victoria. Now that was a ruling of the Supreme Court. The Family Court then in its orders, by setting aside supposedly those Court orders, interfered with it, and the mother now takes the child interstate. Now clearly that breached the very intentions of the wardship orders which is the Supreme Court.

So we have a case of jurisdiction and the question is then of course if the Supreme Court said, look, Mrs Elms, or was then Jackson, "You are not allowed to take a child out of the State of Victoria", and now the Family Court says, "Forget about the Supreme Court, forget about them being wards of the child". Then I think that was ...(indistinct)... and that was done prior to what was supposed to be purportedly the setting aside of the wardship. I have argued in the past that if there is no legal jurisdiction for intervening in the wardship the Courts cannot set aside orders. That is laid down in 1937.

Therefore, I am saying that the Court order in fact made before that, already made orders, interfering with the wardship of the Supreme Court, and I am saying, if we do have laws and I come before the courts and I am trying to study those laws, ...(indistinct)... then if I am required by law to make a cross-vesting application, which I did not do, I had a child made a ward of the Supreme Court for the very intention to prevent her to go interstate and if that child now goes interstate which has occurred now by the mother before, and that she could not bring the child back ...(indistinct)... because she had to travel back from interstate, I am saying it undermines the intention of the Supreme Court which is the guardian.

I believe also that the Court should have advised me who is now the guardian of the child? Am I the sole guardian? Is the Supreme Court still involved? So, you see, your Honour, all those questions have never been answered. The Family Court simply says, well Mrs Elms - and this was the original application, Mrs Elms in the Magistrates Court applied for enforcement orders under section - under the Family Law Act from Supreme Court orders. But the Supreme Court, by its orders ...(indistinct)... never makes Family Law Act orders. And the Magistrates Court never can enforce Supreme Court orders, nor was there a transfer to the Magistrates Court under the Family Law Act.

So, therefore, all the legalities were never complied with, and I am saying, your Honour, let us start back to where they belong. Throw the case back to the Supreme Court where it belongs and say to the Supreme Court, now you sort it out, do you want this case out of your hands, or are you still looking after the child ...(indistinct)... you made it orders as wardship. Because otherwise it is senseless going to a Family Court Orders and then flout them.

As I indicated to your Honour, the term, and which I have now indicated in this case which I did not do in the past, I have researched law and by case law quoted it, that the moment your Honour makes a court order from this bench, it does not require the Registrar to draft it up. That is a valid order. It is applicable from that moment. If the Registrar makes a mistake, under section 71, the Registrar cannot over-rule your Honour, just because you might like it forever or whatever. Your Honour, your word, that is the decision. Not whatever may be accidentally typed up wrongly. And I am saying that is exactly what it is here.

Those Court orders and the transcript were provided. They are legal, admissible documents under the Evidence Act. The Family Court put me in jail, convicted me, refusing me to provide a transcript to show what the judge actually had ordered. The Chief Justice made known that he is aware that the Full Court - that the orders - that they may be incorrect. He indicates that on the transcript. So the Full Court knew very well that I rely on the word of the judge and I believe in those circumstances, legally case law, I never breached an order that was pronounced by a judge. I was held in breach of an incorrect issued order and I believe it was sheer nonsense that that would be enforced to jail a person because a person cannot breach a record of a court order, only an order that is made by the Court, and it was never pronounced.

So I hope, your Honour, that you accept that my argument, and that your Honour will say, well I am entitled to a fair and proper trial to know my legal position and also as I notice under section 120 of the Australian Constitution, that there are certainly ...(indistinct)... requirements further. Where the Family Court appointed a separate legal representative which seems to be on behalf of the Court, because I did not give that authorisation. The Supreme Court did not. So who appoints a separate representative - the court. That means the separate representative is, in fact, a party for - on behalf of the Commonwealth, because I had to pay for it.

Then under the Constitution, your Honour, it is a High Court matter. It is not then a matter to be heard before the Family Court. I have got here a copy of the Constitution with me, your Honour.

HIS HONOUR: I have got one here, Mr Schorel.

MR SCHOREL: It is section 75, your Honour.

HIS HONOUR: Yes.

MR SCHOREL: 75 (iii) and it says:

...in which the Commonwealth is a party.

HIS HONOUR: Yes?

MR SCHOREL: It is my view, your Honour, that if the Court appoints a counsellor - if the Court appoints a separate legal representative against my objection and no one else asked for it. Neither party asked for it, but it is the Court. And the Court called witnesses then I feel that the Court is a party to the proceedings in that sense, and then under the Constitution, I would say that it should not have been the case before the Family Court, but before the High Court. Because the High Court clearly only has original jurisdiction in such a matter.

HIS HONOUR: Well, now, your time has expired, Mr Schorel, and I have read your written submissions.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: This application arises out of protracted proceedings in the Family Court concerning the applicant's custody of his daughter, Gabrielle Mary Wilhelmina Schorel. The applicant was granted custody of his daughter in 1988. In the same year the child was made a ward of the Supreme Court of Victoria. The mother of the child has access pursuant to an order of Strauss J dated 14 December 1992. Numerous applications have been made to the Family Court and this Court as a result of these custody arrangements.

The applicant, appearing in person, seeks an order nisi for a writ of prohibition against the Family Court prohibiting it from proceeding further in matter M 2944X of 1989 and an order nisi for a writ of certiorari to quash a decision of the Full Court of the Family Court handed down on 28 February this year.

The applicant's grounds are not easy to follow, but it seems to me that he contends that the Family Court does not have jurisdiction to deal with matters concerning the custody of his daughter because of her wardship and that he seeks to contest his conviction and the sentence imposed by Hase J on 22 December 1994, pursuant to section 112AD of the Family Law Act for breach of the access order made by Strauss J.

The only material in this application which is different from that which Mr Schorel presented to me on the last occasion is, first, a submission that there was no cross-vesting order by the Supreme Court of Victoria and, secondly, the decision of the Full Court of the Family Court dated 28 February 1995. The judgment of Nicholson CJ with whom Fogarty and O'Ryan JJ agreed, recites the history of the matters in which Mr Schorel has been involved before that Court and concludes that there is no merit in any of the grounds of appeal advanced by Mr Schorel. The judgment deals with Mr Schorel's objections to jurisdiction, determining that there is no basis for transferring any proceedings to the Victorian Supreme Court as they fall within the ordinary jurisdiction of the Family Court. The Court also concludes that there is no reason to interfere with the conviction for the offence under section 112AD or the sentence imposed by Hase J. Indeed, Nicholson CJ remarked that "given the attitude of the appellant to his obligations and given the attitude to the orders of this Court a more substantial sentence would have been appropriate."

Not only does Mr Schorel seek once more to ventilate issues identical to those recently dealt with by the Full Court of the Family Court, but it appears that he has also lodged an application, or applications, for special leave to appeal to this Court against the judgment of the Full Court.

There is nothing raised in the material filed by Mr Schorel which has not already been dealt with either by myself in matter M4 of 1995 (in which reasons were given on 27 February this year) and matters M91 and M93 of 1994 (in which reasons were given on 15 December last year.) The same issues have been canvassed by Mr Schorel before the Full Court of the Family Court which delivered judgment on 28 February this year.

Having regard to Mr Schorel's application or applications for special leave to appeal against the judgment of the Full Court of the Family Court, it would be inappropriate to grant prerogative relief to him to cover the same matters as are raised in that application or those applications. In any event, in my view, Mr Schorel has not otherwise made out any ground for the grant of such relief and the application is, therefore, refused.

AT 2.55 PM THE MATTER WAS ADJOURNED

INDEFINITELY