Field v Human Rights & Equal Opportunity Commission [1999] FCA 1719 (15 December 1999)

Last Updated: 15 December 1999

FEDERAL COURT OF AUSTRALIA

Field v Human Rights & Equal Opportunity Commission [1999] FCA 1719

ADMINISTRATIVE LAW - application to review a decision of the Human Rights & Equal Opportunity Commission (the Commission) not to intervene in Family Court proceedings - whether the Commission made a decision capable of review.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(o)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

MERET FIELD v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

V 81 OF 1999

NORTH J

15 DECEMBER 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 81 OF 1999

BETWEEN:	MERET FIELD Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	NORTH J
DATE OF ORDER:	15 DECEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The application by the applicant to join the Commonwealth of Australia as a party is dismissed.

3. The question of costs is adjourned to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 81 OF 1999

BETWEEN:	MERET FIELD Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent

JUDGE:	NORTH J
DATE:	15 DECEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application by the applicant, Mrs Field, to review what she alleged was a decision of the respondent, the Human Rights and Equal Opportunity Commission (the Commission) said to have been made on 8 February 1999 (the decision). The decision was that the Commission would not investigate the circumstances of, nor intervene in, proceedings against Mrs Field in the Family Court of Australia.

2 The detailed background to the proceedings is set out in reasons for decision handed down today in proceeding VG 10 of 1998. Reference to that decision should be made for those details. It is sufficient for present purposes to explain that Mrs Field was a party to earlier proceedings in the Family Court which resulted in custody of her granddaughter, Margaret, being granted to Mr Nelson, the husband of Mrs Field's daughter, Isabel. The Family Court at first instance and on appeal excluded Mrs Field and her daughter from any access to Margaret. Mrs Field believes that the grant of custody to Mr Nelson was a gross injustice. She has taken legal proceedings in a number of courts and tribunals to vindicate her belief. Most, if not all, of those proceedings have been unsuccessful.

3 On 21 December 1998 Mr Hermie Colina, the Marshal of the Family Court, filed an application seeking to have Mrs Field dealt with for contempt of the Family Court. The details of the alleged contempt were set out in the application as follows:

"(a) On or about 11 December 1998 at about 1:30 pm in front of Marland House, 570 Bourke Street, Melbourne, the respondent did hand out to members of the public documents entitled "KILLERS", "WANTED/AN URGENT AND LEGAL METHOD OF REMOVING THIS JUDGE/JUDGE CARTER/ FROM THE FAMILY COURT", and "GANDHI" which documents contained contemptuous material.

(b) On or about 14 December 1998 at about 9:20 am in front of Marland House, 570 Bourke Street, Melbourne, the respondent did hand out to members of the public documents entitled "KILLERS", "WANTED/AN URGENT AND LEGAL METHOD/OF REMOVING THIS JUDGE/JUDGE CARTER/FROM THE FAMILY COURT", and "GANDHI" which documents contained contemptuous material."

4 Marland House was the location of the Family Court at the time.

5 On 23 December 1998 Guest J of the Family Court made interim orders in the application which included:

"(1) That until further order the Respondent be restrained from making any public statement in writing or orally which contains any scurrilous abuse of a judge of the Family Court of Australia or the Court generally such as to reduce, or likely to reduce the public confidence in the Court and bring it into contempt.

(2) That until further order, the Respondent be restrained from coming within or distributing any sort of printed material within, 200 metres of any building which houses a registry of the Family Court of Australia, save for the purpose of:

(a) attending the Registry of the Court at a time appointed for hearing of any application;

(b) attending any appointment fixed by order of the court; or

(c) by prior arrangement with the manager of the said Registry,

pending the final hearing of the Contempt Application filed on the 21^st December 1998.

(3) That until further order, the Respondent be restrained from distributing the following documents:

"KILLERS!"

"WANTED/AN URGENT AND LEGAL METHOD/OF REMOVING THIS JUDGE/JUDGE CARTER/FROM THE FAMILY COURT" and

"GANDHI"

pending the final hearing of the contempt application filed on the 21^st December 1998.

6 The application has not yet been heard although on 23 December 1998 it was adjourned only until 2 February 1999.

7 By letter dated 8 January 1999 Mrs Field wrote to the United Nations, the Prime Minister, the Minister for Justice, the Attorney-General of the Commonwealth, the Chief Justice of the Family Court, the Premier of Victoria and also to the Commission in the following terms:

"My Dear High Commissioner, Chief Justice, Members and others,

RE: Communication with the Committee Against Torture

United Nations File No. 6150 215/4

This letter is in reference to my letter of 22-10-98 whereby the Marshal of the Family Court of Australia, Mr. Hermie G. Colina, threatened me when I was trying to use a domestic remedy to protect my grandchild from the cruelty and ill-treatment inflicted on her by the Family Court of Australia. I am complaining that I am in the process of being persecuted unlawfully and illegally in the Family Court of Australia because of my Communication with the United Nations, Centre for Human Rights, Geneva, File No. 6150 215.

Judge Sally Brown has already punished me, the grandmother of the persecuted child, because I used up all domestic remedies and wrote to the Committee Against Torture, a United Nations committee. Judge Sally Brown also punished mother and child unfairly and unjustly, but is protected because the Federal Parliament of Australia permits judges to practice Krytocracy by making judge-made laws that conflict with legislation. The Federal Parliament of Australia has not made legislation to protect the Australian people from the injustice and cruelty of Krytocracy or judge-made law or the breaches of International Human Rights Treaties by judges. The power struggle between democratic parliaments and the courts of law, particularly the Family Court of Australia, is not usually made public.

I am writing to advise you that the same public servant, Mr Hermie G. Colina, has charged me for handing out political brochures about the Family Court because I was supposedly seen standing next to a man. As I understand it, the name given to this other man is not correct. Judge Guest of the Family Court tried to make an order that documents for service on this man could be served on me. As I understand it, I am not permitted to obtain the transcripts of the court hearing against this man when I was, myself, present in court at the bar defending myself as a replacement for this man. Service on this man had not occurred.

I attended the court hearing on 23-12-98 because of the documents served on me only to find that I was also standing in place of this man in a court hearing that this man did not even know about. The court used a pretense name for this man instead of his real name. I did not give Judge Guest permission to use me as a replacement for this man during the proceedings and I was not provided with any notice that I would be standing in his place. The Family Court is apparently attempting to keep this part of the case secret by not allowing me to have the court transcripts. This is unfair.

Judge Guest made orders against me to deny me political freedom although I had not received legal advice and although a doctor's certificate was given to him as evidence that I was not fit for work that day. I had not even been given 24 hours notice about the hearing and was unprepared. The orders made against me are likely to prevent me from studying law at university this year. I had applied to study law in 1998 because of the prejudice used against me in the Family Court because I am not a solicitor and because any order made by a judge is legal even if it is unlawful. Furthermore, at the present time I am writing a book about the untimely death of a 3 year old child who was also denied access to doctors of medicine by the government of Australia. The Family Court of Australia can be shown to be responsible for the tragedy. Judge Guest knew that by making his order against me he would be (a) preventing me from writing about the tragedy of a most unfortunate child and (b) interfering with my university studies. The order of Judge Guest is loaded with value judgments.

Judge Sally Brown would not even allow my case to be presented at the trial and refused to consider any part my [sic] the Communication, United Nations File No. 6150 215/4 which was in front of her. The Full Court of the Family Court refused to hear the Communication, United Nations File No. 6150 215, because of its claim that it does not have to consider International Human Rights Treaties. The High Court of Australia supported Judge Sally Brown because it refused to allow my Communication with the United Nations to be heard in Australia. The orders of dismissal are attached. The Human Rights and Equal Opportunities [sic] Commission has admitted that it can intervene in a court hearing, but refuses to do so regardless of the injustice and the continued breaches of International Human Rights Treaties. The Attorney General, Mr D. Williams refuses to intervene because of his claim that the United Nations has not contacted him.

Because the High Court of Australia dismissed my appeal and mother's appeal for leave to file in the High Court of Australia, the only avenue open for me to try to protect my grandchild is political. The Attorney-General, The Hon. D. Williams can no longer claim that he can not to [sic] anything because of the Separation of Powers between Federal Parliament and the Family Court because we do not have any case about my grandchild in the Family Court at all. It appears that the Family Court of Australia is deliberately creating a false charge against me to (1) create an illusion of a separation of powers between the judiciary and members of parliament and (2) to prevent me from acting politically.

I have been unable to convince any Member of Parliament to stand up and present our case to Federal Parliament or to ask questions. The only way I could possible [sic] do this is through a political organization. Please note that although Australia is supposed to be a democratic country, the orders of Judge Guest prevent the political process being used in Australia. I am not the first person charged unlawfully by the Family Court for using the political process. It is unfair that the Family Court should be the prosecutor and the judge at the same time. The Family Court will not allow the case to be heard independently in another court or by a jury.

Yours faithfully,

[signed] maternal grandmother

Meret Field B.A., Gr.Dip.Teach.,

B.Ed.St.,M.E.P.A.

P.S. See on page 32, Court Transcript lines 26 to 34. Judge Guest is preventing me from advising the United Nations. MF

The following documents are attached for your information:

Pages

"A" My letter of 22-10-98 and attachments - 3

The Marshal's letter of 13-10-98, & 4

My Krytocracy brochure 5

"B" Applications and Affidavit of the Marshal of

the Family Court dated 21-12-98 and 6-23

"C" Order of Judge Guest of 23-12-98, only recently

received. 24-27

"D" High Court Orders of dismissal. 28-30

"E" Transcripts, Court Proceedings 23-12-98, p18 31-32"

[underlining in original]

8 Mrs Field wrote a further letter to the Commission on 28 January 1999 as follows:

"Dear Sir/Madam,

With reference to my discussion with Grant Robertson at your Sydney office today, I am writing this letter to add to my letter of 8 January 1999.

At the hearing before Justice North in the Federal Court at Melbourne in the middle of last year - Federal Court File No. V.G. 10 of 1998 - Meret Field vrs HREOC and COMMONWEALTH OF AUSTRALIA, HREOC admitted that it could apply for leave to be a party to the proceedings of the Family Court of Australia. As yet Justice North has not handed down a decision.

N I am requesting that HREOC apply to the

O Family Court, File No ML 12128 of 1998 -

T Family Court of Australia and Field,

E for leave to be a party to the proceedings.

This is a serious matter because the Family Court is knowingly refusing and preventing me from using the only domestic remedies left for my Communication with the High Commissioner of the United Nations, United Nations File No. 6150 215. The Family Court has already punished my daughter and grandaughter because I wrote to the United Nations. Judge Sally Brown called it a global punishment. Her intention was to deter anyone else from writing to the United Nations.

As the High Court accepted that any order made by a judge is legal and binding even if the order was made without jurisdiction and conflicts with legislation and International Human Rights i.e. an unlawful and illegal order made by a judge is legal and binding. I need to point out that this matter includes (1) the program for a court sanctioned killing of my grandaughter and (2) her illegal and unlawful arrest by the Federal Police when she was 4 years old. The child has never been released from that false arrest and the Family Court and the Full Court of the Family Court refused to allow a hearing of the child's false arrest. The suffering of the child over the long period of time is cruelty inflicted by the government of Australia.

The only words I have said in public in protesting on the footpath are "Family Court papers," "Family Court brochures." My civil rights and civil liberties are threatened by the Family Court without due cause and a precedent has been set to deny the Australian people democratic rights. This is of great public interest.

* The case is to go to court in Melbourne on Tuesday 2^nd February in the coming week. Please treat this matter urgently and with priority.

[signed] (M.Field)"

[underlining in original]

9 Mr Grant Robertson, a complaints information officer employed by the Commission, replied to the above two letters from Mrs Field in a letter dated 8 February 1999 as follows:

"Dear Ms Field,

I refer to your correspondence received by this Commission on 18 and 28 January 1999. You state that the Marshal of the Family Court of Australia, Hermie G. Colina, threatened you and that the Family Court is unlawfully persecuting you because of your communication with the United Nations Centre for Human Rights.

You have provided documentation relevant to contempt orders that were issued by the Family Court on 23 December 1998 that prevent you from `making any public statement in writing or orally which contains any scurrilous abuse of a judge of the Family Court'. You are concerned by orders that could have been issued by the Family Court on 2 February 1999 that will prevent you from communicating with the United Nations Committee against Torture.

I am aware that you have previously made submissions to this Commission with respect to your matters before the Family Court. Your matter was declined by the Acting Human Rights Commissioner, Kevin O'Connor. He explained that he is only able to inquire into non-judicial matters relating to federal courts. I am confirming that this Commission is still unable to deal with the matters to which you are referring.

In relation to your request for the Commission to apply to appear before the Family Court, the Commission only makes application to appear before a court in very limited circumstances. Although I appreciate that these issues are of great concern to you the Commission will generally not appear before the courts in relation to the matters you have raised. I apologise for having not provided you with this advice prior to 2 February 1999.

The Commission will not be taking any further action in relation to these matters. Your file is now closed. If you have any inquiries please do not hesitate to contact me on 1300 369 711.

Yours faithfully,

[signed]

Grant Robertson

Complaints Information Officer"

10 On 26 February 1999 Mrs Field filed an application in this Court for an order of review which commenced with the following paragraph:

"Application to review the decision of the Respondent, the Human Rights and Equal Opportunities [sic] Commission, on 8 February 1999, not to intervene in the Family Court case ML 12128 of 1998 and not to protect civil liberties and international human rights within the spirit of the meaning of the First Optional Protocol that came into force for Australia on 25 December 1991 for the International Covenant on Civil and Political Rights, the ICCPR, that was ratified by Australia on 13 August 1980."

11 The grounds of the application were stated as follows:

"1. the Respondent, the Human Rights and Equal Opportunity Commission, is bound by its duties to protect the spirit of International Human Rights Treaties, and to protect civil liberties and human rights in Australia, and

2. the Respondent can apply for leave to be a party in a court case, and

3. the integrity of Australian courts is under threat because unwritten conventions are abused by Family Court judges, and

4. the high level crimes of Krytocracy and judge-made law can not be resolved without proper government and parliamentary intervention, and

5. the death penalty has been abolished in Victoria and should not be patronized by a single judge, and

6. judges should abide by legislation enacted by democratic parliaments, and judges should not infringe on parliamentary legislation and parliamentary privilege, and

7. the Federal Police will act unlawfully and illegally and endanger the life of persons when directed by an individual, or the management of the Family Court, or a fraudulent or defective warrant, and

8. the doctrine of the separation of powers should not be used to promote or to allow the Family Court to revolt against the people of Australia, and

9. the nature of the high level crimes of abuse of power being committed by judges is the cause of civil unrest, and

10. an oath of a judge to abide by legislation that was enacted by democratic parliaments in Australia is not evidence that a judge will obey the law, and the presumption that a judge will obey the law should not be accepted as fact, and

11. the Family Court is involved in child stealing and treason in that to urge the police to arrest a child without going through the due process of legal requirements is called Treason and can only be determined by Parliament. The Family Court of Australia refused to investigate thereby conspiring to defeat the cause of justice in Australia."

12 The relief sought was:

"1. this application to the Federal Court of Australia should be amalgamated with the applicant's case VG 10 of 1998 that is awaiting judgment by Justice North, and

2. the Respondent should be ordered to investigate the high level crimes conducted by the Family Court of Australia including the Torney case as mentioned by the Australian Government Solicitors in court, and

3. the Respondent should be ordered to investigate the perversion of justice by the Federal Police and the false arrest of my grandchild, and

4. the Respondent should be ordered to become a party to the applicant's Family Court case File No. 12128 of 1998, and

5. the Respondent should be ordered to report in writing to the applicant, Meret Field, within a reasonable and short time, and

6. the Federal Police should be notified about the Commonwealth Crimes committed by government institutions, and

7. the Respondent should be ordered to provide a written report of its investigation to the Federal Parliament of Australia within a reasonable and short time."

13 The first issue which I will address is the submission by Mrs Field challenging the alleged decision of the Commission not to intervene in the contempt proceedings before the Family Court. This alleged decision is contained in the last two paragraphs of the letter dated 8 February 1999 signed by Mr Robertson. It is not surprising that Mrs Field read those paragraphs as a reference to a decision by the Commission not to intervene in the proceedings. However, the solicitor for the Commission, Ms Susan Roberts, appeared for the Commission and explained the circumstances in which the letter was written. She later swore an affidavit, as did Mr Robertson, deposing as to those circumstances.

14 The power to intervene is given to the Commission by s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act), which provides that the functions of the Commission include "where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues;"

15 Section 8(1) of the Act provides that the Commission is constituted by a President, a Human Rights Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Sex Discrimination Commissioner, the Privacy Commissioner and Disability Discrimination Commissioner. Section 44(3) provides that, for the purposes of a meeting of the Commission, a quorum is made up of not less than one half of the number of members for the time being holding office under s 8(1). Section 44(6) provides that questions at meetings of the Commission are to be determined by a majority of the votes of the members present and voting. The power to determine whether to intervene was not delegated by the Commission. It therefore fell to be exercised by the Commission.

16 In fact, the Commission made no such decision. Mr Robertson had no authority to make the decision. He was not aware that the question had to be determined by the Commission. When he reviewed Mrs Field's letter he went to see Ms Clifford, the Director of Complaint Handling. She telephoned Ms Roberts, the Director of Legal Services, who said that the Commission would not usually intervene in a case such as Mrs Field's, but that Mr Robertson should review the files relating to the proceedings. Based on a review of those files, Mr Robertson wrote the relevant paragraphs to Mrs Field expressing his view that the Commission would not intervene. Even if the subject paragraphs were more than the expression of an opinion by Mr Robertson and amounted to a decision by him, the decision was not effective to determine that the Commission would not intervene in the proceedings against Mrs Field. There was thus no basis for a successful challenge to the action of Mr Robertson under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

17 When these facts emerged at the hearing on 23 July 1999 Ms Roberts indicated to the Court that the Commission would consider whether to intervene in the proceedings and provide Mrs Field with a decision of the Commission.

18 After judgment in this case was reserved, the Commission did consider whether to intervene in the contempt proceedings. On 10 August 1999 the Commission determined that it would not seek leave to intervene in those proceedings.

19 On 16 August 1999 Mrs Field wrote to my associate and to the President of the Commission indicating that she was not satisfied with the decision of the Commission and that she desired the present proceedings to be reopened to allow a challenge to the late decision. That is not the appropriate procedure to challenge the later decision. The application for review which commenced this proceeding related to the alleged decision made on 8 February 1999. I have found on the evidence that no decision was made by the Commission on that day to refuse to intervene in the proceedings against Mrs Field. Thus, in respect of the alleged decision not to intervene in the proceedings it is appropriate to dismiss Mrs Field's present application.

20 This leaves the final question, namely, Mrs Field's application to join the Commonwealth of Australia (the Commonwealth) as a party to this proceeding. Mrs Field relies on all the evidence and submissions put before the Court in VG 10 of 1998 together with evidence and submissions concerning recent events including the charging of Mrs Field with contempt, the making of the interlocutory orders by Guest J and the alleged refusal of the Commonwealth to intervene in the contempt proceedings. The application to join the Commonwealth as a party was filed on 16 April 1999. The document is twenty pages long and restates much of the criticism of the Family Court and the events related to the proceedings in that Court which I have set out in my reasons for decision in VG 10 of 1998. The first four paragraphs attempt to state the relief sought as follows:

"1. Leave to be granted to the applicant to join the Commonwealth of Australia as a party to this application.

2. A full investigation of the whole controversy is required as implied in the Applicant's Affidavit of 26 February 1999.

3. The circumstances of the contentions in this application require the extraordinary relief of an amalgamation of VG 10 of 1998 and VG 81 of 1999.

4. An order for HREOC to provide recommendations to the Commonwealth to promote the spirit of International Human Rights Treaties in the Family Court, is required."

21 In the course of the hearing I ruled that this application would not be joined with VG 10 of 1998. This ruling was made in the forlorn attempt to bring VG 10 of 1998 to an end without adding further issues after the conclusion of the hearing of that matter.

22 Paragraphs 5-57 (inclusive) of the application to join the Commonwealth as a party to the proceedings rely on the evidence and argument advanced in VG 10 of 1998. For the reasons I have given in VG 10 of 1998, no case against the Commonwealth is disclosed by that evidence or those arguments, and it would be wrong to join it as a party to this application on that basis. Insofar as the events concerning the recent contempt proceedings are relied upon by Mrs Field to support the argument that the Commonwealth is in breach of some duty to her, the case must also fail. The evidence as to those recent events does not disclose any cause of action against the Commonwealth and hence does not justify the joinder of the Commonwealth as a party to these proceedings.

23 Beyond the arguments raised in VG 10 of 1998, Mrs Field seeks to rely on a further argument to justify this application to add the Commonwealth as a party. Buried within the multitude of grounds for the application, many of which are repetitive, is the suggestion that the Commonwealth is required to assist the Commission. For instance par 28 of her application states:

"28. HEROC [sic] does not have

(1) the financial means, or

(2) the capacity, or

(3) the use of intelligence gathering, or

(4) the ability to fully investigate

or adequately deal with the power struggle between Federal Parliament and the Family Court of Australia that intrudes on the well being of Australian families and causes an enormous amount of community unrest, suffering and disturbance.

HREOC requires help from the Commonwealth of Australia to assist with its duties."

24 It seems that assertions such as those contained in par 28 are intended to support the sort of relief referred to in par 65 in which Mrs Field seeks:

"65. A specific order for the Commonwealth of Australia to assist HREOC in the investigation of the validity of the width of the order that Guest J made to prevent the Applicant, Meret Field, from writing to members of Parliament, and likewise prevents Members of Parliament from obtaining information."

25 Further orders requiring the Commonwealth to assist the Commission can be found in pars 66, 67 and 68. This claim does not raise a cause of action known to the law. It is therefore not appropriate that the Commonwealth be made a party to this application on that basis.

26 In the result the application to join the Commonwealth as a party is dismissed, and the application for an order of review is also dismissed. I will hear argument on the question of costs on a date to be fixed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 15 December 1999

Counsel for the Applicant:	Applicant appeared in person
Solicitor for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Ms Susan Roberts
Solicitor for the Respondent:	Legal Section, Human Rights and Equal Opportunity Commission
Date of Hearing:	8 July 1999, 23 July 1999
Date of Judgment:	15 December 1999