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Inquiry into a better family law system 18-4-2017

PO Box 6021
5 Parliament House
Canberra ACT 2600
Phone: +61 2 6277 4230
Fax: +61 2 6277 8463
fvlawreform@aph.gov.au
10
Ref: 20170418-G. H. Schorel-Hlavka O.W.B. Re SUBMISSION Inquiry into a better family law system

Sir/Madam,
I for one have plenty of nasty experiences with the Family court of Australia, and the
15 worst of it all was that after more than 10 years it was the Childrens Court who then asked me to
take custody of the children due to the evidence that for more than 10 years the mother had been
physically abusing the children, including breaking a cricket bat on the back of the eldest child,
as to the force she was using upon him and nearly strangling to dead another son. Yet, the Family
Court of Australia declared me to be a vexatious litigant for dating to make numerous
20 applications to try to get my kids out of the claws of this monster. She admitted under oath, and
represented by a lawyer, that she had become married to me voluntarily and the trail judge then
commented I didnt have to go into that as he accepted she entered voluntarily into the marriage,
only then in the judgment blaming me for her violence that she was forced into a marriage, this
even so her violence started long before I even knew her. When I placed before the Family court
25 of Australia she had assaulted me the trail judge commented that I couldnt use this unless I got
her charged and she was found guilty. Well I pursued it through the Magistrates Court of
Victoria, and again she was as always represented by a lawyer paid for by Victorian Legal Aid,
as usual, and she pleaded GUILTY. So the magistrate gave her 6 months probation and no
conviction. When she was charged about the assault of one of the son, with medical evidence she
30 nearly struggled him to death and the other using all kinds of implements and breaking the
cricket bat, etc, again represented by a lawyer paid for by Victorian Legal Aid she pleaded
GUILTY. Considering also that at that time a bail justice during the night placed the children in
my care as even at the police station she had thrown a sleeping child (our eldest son) of the chairs
that the police sergeant then warned her if she did it again he would lock her up. If a man did the
35 same he be locked all already. Well the magistrate again gave her 6 months probation and no
conviction recorded. And this went on time and again with her violence towards others, even
attacking children at the primary school that she was banned. We lived about 6 weeks together
and yet somehow her ongoing violence before we met and after we separated all was somehow
blamed on me for forcing her to marry me, so the trail judge claimed contrary to her evidence
40 that in fact I had called of the wedding and she convinced me subsequently to go ahead with the
wedding. The children are grown up and their lives are marred with violence as after all they
were forced by the Family Court of Australia to live in a tortuous family life. Somehow the fact
that once I came to drop of the children from access she placed a butcher knife at my throat
forcing me to s\stay with my daughter (not her child) who was then about 2 years old, may

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underline she was violent alright but if one were to check the judgments then somehow she is
like some saint.
When I cross-examined 3 doctors, being expert witnesses, I then was able to expose that the 3
doctors each were having filed Affidavits on the basis each was the only family doctor and it
5 turned out they were all 3 at the same time a family doctor. Each admitting during cross
examination that if the mother did take the children to other doctors at the same time then they
would be concerned. In fact one of the doctors in the witness box state That the mother is vague
and aloof about the childrens health. Yet, the judgment totally ignored this. When I was cross
examining a doctor as to the evidence on record from another witness that she fed a 6 month old
10 child 3 eggs a meal if this was of concern because of it could damage the renal system the doctor
agreed. The trail judge than interrupting with What is the difference between baby food? You
are not claiming she was starving them to death?, which showed that this trial judge simply had
no understanding as to what is applicable for a tender aged child and what food it can have or
shouldnt have. And such a judge who cannot understand the evidence before the court hardly in
15 my view is competent to preside over issues regarding small children. The mother was putting
hot curry on the childrens lip and forcing them to stay seated on the couch not allowed to have
water against the burning on their tong. To me this is torture. Likewise she would put a hard pea
on the ground and force a child to kneel on it and maintain to be so for a long time.
I understood that 2 of the boys wanted to pay back their mother in violence but I explained that I
20 oppose any form of violence.
We had this person who was purportedly a counsellor that we attended to. Well he apparently
got his counsellor position because of his resume being a Minister of some sort of religion. Well
his report was based upon his religious views, etc. So after cross-examining him for most of the
day and he was running me into the ground, we had the long week-end and so I purchased a
25 book about his religion over the week-end and studied it all. When then after the week-end I
started my cross examination about his religion he suddenly declared he was now a humanist.
Moment he gave a report and evidence on the previous Friday all based upon his religion and
then suddenly changed his tune to be a humanist and no longer practice that religion. So the
trial judge made clear I could not cross-examine him about that religion. OK he was a humanist,
30 so I I then cross-examined him about a list of some 60 issues I had given him. He confirmed he
had the list. I then asked him why did his report then omit any references of violence if he was a
humanist opposing violence,. Well he wrote it in his religious views. What a cop out.
There was this issue that the eldest son as a 9 year old baby had allegedly by the Royal
Childrens Hospital report fallen out of a cot onto a hard floor and broken his arm in the process.
35 However the mother admitted that in fact the child had been on a bed (not a cot) and the floor
was covered with a carpet. And the incident had occurred at some ones place where the mother
had come into the living room and the woman of the house then went to the bedroom and found
the child crying of pain on the double bed. She then organised for a doctor and it was found the
child had a broken arm. At that time the mother was a single mother. Yet, the so called
40 counsellor claimed that I had accused the mother of deliberately breaking the childs arm. This
where all I did was to raise with the counsellor the conflict of versions the mother had given to
the hospital versus in affidavit material, etc. Considering her later violence it was obvious she
was a very violent person, but somehow it was all my fault, going by the judge, even so she was
violent towards others before I even knew her.
45 Finally after more than 10 years it was the Department of Human Services who took the matter
to the Childrens Court that was 14 days after I happen to warn them that in my view the mother
was too calm and may likely kill one of the children. That is precisely what she tried to do less
than 2 weeks later. It then was established that the eldest son had numerous injuries on his back
from the years of bashings by his mother. But, let us not forget the Family Court of Australia
50 declared me to be a vexatious litigant for daring to make applications regarding her ongoing

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violence. I understood that the police attended with weapons drawn because of the known
violence by the mother but in the Family Court of Australia she was so to say a saint.

Then I had a child with a woman, effectively she came on top of me when I was asleep and from
5 there she became pregnant. If a man did the same to a woman he be charged with rape! In any
event, I didnt know at the time she had become pregnant. It was my mother-in-law complaints
about here STD phone bill that ended up her telling me the STD calls were regarding my
daughter. That was the first time I heard about the daughter then about 4months old. I didnt
hesitate to see my daughter, and no need to describe how she was found, safe to say I had to
10 clean the entire area. The mother already had 4 children. About a year later the mother phoned
me that the Department of Human services had taken her to the
Childrens Court regarding sexual abuse by her boyfriend. I went to the court and discovered the
mother had a past of allowing boyfriends to sexual abuse her children. I was granted interim
custody of my daughter and 2 of the other youngest children. The case went back to court and all
15 children were then placed in Allembie, Burwood. I complained successfully to the Ombudsman
that Allembie was in an unsuitable condition and the Ombudsman upheld my complaints.
I succeeded in the Supreme Court of Victoria having also applied to have my daughter made a
War of the Court. As such she couldnt be taken out of the courts jurisdiction. The court made it
clear that access could be denied if the mother had any boyfriend with her. Well, when I attended
20 to Allembie, where the mother would stay, I noticed she had a boyfriend there and so informed
staff I would not leave my daughter with the mother. The next thing I know is the Minister for
Human Service having gone on national television that he would authorise tracker dog to find my
daughter. A warrant was issued for the arrest of my daughter. Yes the arrest of a 2 year old
child. After more than a week having provided the police with copies of the Supreme Court of
25 Victoria orders, I attended to the police station at Nunawading refusing to hand over my daughter
and so the police formally executed the warrant and took my daughter of me. What I didnt know
at the time, but discovered much later, was that the police had attended to a nursing home where
an old woman suffering of dementia had been required to sign the warrant, this even so (as her
son informed me afterwards)he had cancelled his mothers Justice of the Peace appointment
30 some10 years earlier but the police kept pestering her to sign warrants even so she didnt
understand what she was signing.
Anyhow within 5 days of the arrest the case became before the Supreme Court of
Victoria and I made clear I had no intention of listening to the Department of Human services as
I had Supreme Court Orders and didnt accept that the Department of Human Services could
35 overrule court orders as its barrister claimed it could.
The trial judge made clear that the warrant was unlawful and set aside the warrant as I was
entitled to enforce the Supreme Court of Victoria orders, and ordered my daughter to be returned
that day to me. This occurred.
The mother however with her Legal Aid funded lawyers then went to the Magistrates Court of
40 Victoria claiming I was in breach of orders, and the court made orders against me. Under Family
Law provisions. I engaged a lawyer to appeal the matter to the Family Court of Australia, as is
the legal process required, that the Magistrates Court of Victoria had no jurisdiction over a
Supreme Court of Victoria and that the child being a Ward of the Supreme Court of Victoria
could therefore not be subject to any Family Law matter. Well I found out afterwards this lawyer
45 so to say sold me out, and somehow conceded jurisdiction to the court. It is a matter of law that if
a court has no jurisdiction then the parties cannot give it jurisdiction!
I now was pestered by the Family court of Australia to cometo a hearing that wassheduled.
Considering Ilived 350 kilometres from Melbourne and travelling by public transport this is not
some 5minutes event. I contacted the reguistrarand he insisted there was a hearing Iand if I didnt
50 attend the matter would proceed in my absneteism.So I attended to find the mother didnttrun up.
Ichecked with the registrar and he advised me it was the wrong date . Ishowed him the courts
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correspondence and that it was confirmed by phone that it was the correct date. Well the
Registrar made clear it was incorrect and there was no case.
As a single parent without child support and having to pay off a mortgage such hoax calls hardly
was within my financial means. Then when I was unable to attend 2 weeks later the court went
5 ahead in my absenteeism and ordered a custody hearing.
During a hearing I then challenged the mother needing to use a wheelchair and the trial judge
then berated me and making clear he would order for a medical certificate and then it would go
against my case for custody.
At the subsequent hearing the barrister provided the court with a medical certificate that the
10 mother needed a wheelchair and 11 supporting affidavits of others to that affect.
The trail judge then made clear that he had warned me and I had to face the legal consequences.
I then asked the judge if the word VET stood for VETENARTIAN and if in law an animal
doctor was permitted to provide a medical certificate for a human being. The trial judge then
asked the barrister if this was correct that it was a vetenarian who had signed the medical
15 certificate. The Barrister then made known that the family doctor had refused to sign a certificate
and so the vetenarian had done so, but he withdrew the affidavit and the other 11 affidavits.
It was obviously clear the mother had been attending constantly in a wheelchair while in fact
there were no medical reasons for her to do so.
As later one of her daughters mother-in-law stated to me she had known the mother to be
20 confined in a wheelchair and then one day when they were in a store where there was a sale, she
was gob smacked to see the mother racing out of the chair pushing away other female shopper
and grabbing items and then go back into the wheelchair.
Judge are fooled by the conduct of a person attending in a wheelchair without even asking if the
person requires the usage of a wheelchair on medical grounds.
25 When I cross-examined the mother via a video link in another hearing then the trial judge (even
so one could only see her shoulders and head) declared she needed to use a wheelchair, this
without any medical certificate being provided.
Anyhow I defeated the mothers custody application during a telephone hook-up where I was still
at home and called in by telephone, (the mother with her legal team being in the court room) that
30 the trial judge struck-out the custody application of the mother and on my request ordered the
mother and her legal representatives were not permitted to file any further custody application
without first having obtained the leave of the court. That was on 9 October 1992. Well, the
mothers nevertheless filed another custody application that came before Strauss J and I alerted
the judge to the orders of 9 October 1992 but basically he couldnt care less.
35 Worse, he had ordered for the Department of Human Services to attend, without my knowledge.
Well the person once in the witness box explained that he was not permitted to disclose
confidential details. Strauss J then made clear he would be dealt with for CONTEMPT OF
COURT if he failed to provide details. I then intervened making clear I consented forhim to
disclose confidential details. When this person was examined by the mothers lawyers Strauss J
40 kept saying there need to be a change of custody. In the end when the barrister had finished his
questions Strauss again was making this comment. I then asked if I could cross-examine to which
Strauss seemed to be puzzeled why on earth after the evidence that was given, but it was my
right and so he conceded for me to cross-examine. I then asked the person various questions and
he clarified what he had stated and it turned out totally different then what the trail judge had
45 assumed it was meaning. More over the barrister of the mother started to claim that the Children
court had it wrong to have ordered the husband of the mother to stay clear from the matrimonial
home after a daughter had claimed to be sexual abused by him, which turned out to be at the
same time my daughter claimed to have been sexual abused while on access with her mother.
When my daughter was complaining of sore between her legs I took her to the Department of
50 Human Services for them to find out if my daughter was sexual abused. For a custodian father to
do so he is automatically one of the suspects. I made clear I didnt want to be present when they
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talked to my daughter as to avoid any claims I might influence her responses. Afterward Human
Services advised me they couldnt get details from my daughter. I then took my daughter to the
Royal Childrens Hospital and after a medical examination the doctor provide a statement that
the healing process was consistent with the time since she had last been on access.
5 Yet, Strauss J despite of that made a comment during the trial that he didnt know if I had done
it, as obviously I could not say the mothers husband had been the person as I wasnt there.
As such the court rather to provide appropriate support for me and my daughter so to say gave us
hell on earth.
Worse was yet to come. Despite that I maintained all along the court had no jurisdiction over my
10 daughter it couldnt give a darn. Even a Full Court ruled against me but in the end I know that
constitutionally the court cannot take over any Ward of the Supreme Court. It is a different
matter when a child is the Ward of the state and the State allows the court to take over, but where
a child is the Ward of a Court then no other legal jurisdiction can interfere with the child. This
was well known when a German child living in England was the subject of a custody battle and
15 while both parties consented to jurisdiction the Court made clear the child was the Ward of a
German court and therefor the consent of the parties was irrelevant.

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)
QUOTE CCH 92-217 page 78485 (1991)
20 The Court could not make an order which otherwise fell outside its jurisdiction merely
because the parties consent to it..
END QUOTE

Lack of Federal Jurisdiction can not be waived or overcome by agreement of parties. Griffin v.
25 Matthews, 310 F supra 341, 342 (1969): and Want of Jurisdiction may not be cured by consent
of parties. Industrial Addition Association v. C.I.R., 323 US 310, 313.

It should be noted that while I had court orders to collect my children fortnightly for access from
Melbourne, Strauss J made clear he was not interested about those orders and refused to consider
30 them.
As a single parent I was having custody of one child without child support and court orders in
regard of 4 other children and I got a judge telling me those orders are irrelevant to him?
With my car being of the road it means having to travel with 5 children on the Friday from
Melbourne to Morwell stay over in a motel for the weekend and then return the 4 children to
35 their mother. And this while my daughters mother when I arrived at Morwell gave me the
understanding at times that she doesnt want access of my daughter. Any judge would realise that
a person on a pension cannot afford tio spend days in a motel with 5small children, as it would be
well outside his financial ability. Still the Family court didnt careless.
Then one day when at the court I applied for the orders to be changed but that was refused. I had
40 however no monies to travel to Morwell and pay for motel accommodation and so went back to
Berriwillock. The mother filed a contempt application against me. When that case came up
before Hase J I had totally forgotten I was on that day in Melbourne and so my evidence related
to my residence in Berriwillock. To me I was telling the truth as far as I was concerned, but as I
had in fact been then in Melbourne the court took it differently. Whole the case was still to go
45 for2 days nevertheless Hase J already had issued orders for 21days imprisonment. So, regardless
of what the evidence was subsequently, 2 days later he again issued orders for imprisonment.
Clearly Hase J had pre-determined the 21 days imprisonment well before all evidence was
concluded. My daughter was forged to stay with her mother and her husband for 4 weeks and
prohibited to have any contact with me. The Family court obviously didnt give a darn about my
50 daughter health and wellbeing being placed in jeopardy for sexual abuse while being ast her
mothers residence.
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After this imprisonment my daughter and even now as an Adult blames herself for that I was
imprisoned to seek to protect her. The mother thereafter refused to comply with the access orders
and so I filed now for contempt application against the mother. The court held that the mother is
not bound to comply with court orders,. What a baloney!
5 As for the 21 days I was before the Full Court after 14 days regarding my appeal, which came
nowhere and Nicholson CJ ordered me to serve the other week dismissing my submissions that I
served the 21 days due to remissions. I was sent back to the cells and I then informed the
sergeant to call the governor of prison to have me immediately released. He did so and released
me on orders of the governor that I had served the 21 days because of remissions. The next day I
10 was seated in the Family Court court room but no hearing was in progress, when a court staff
person requested me to come outside. I was informed that the chief Justice had ordered me to be
returned to the cells as I still had to serve a week. I made clear that I was not interested what the
chief Justice fabricated, I was lawfully released by the governor and that was it. I went back into
the court room and now the full Court was in session, and I took a seat in front of Nicholson CJ
15 to make clear I was still there. Months later the Family Law Act was amended that remission
could no longer apply. In my view this is unconstitutio0nal and unlawful as I proved in legal
proceedings with the Commonwealth regarding charges of FAILING TO VOTE, I then
successfully opposed the federal provisions of averment being a federal provision that cannot
override State matters. (on 5 August 2005). A magistrate nevertheless later convicted me (in a
20 subsequent hearing, albeit then the prosecutor presented purported evidence) on both charges but
on appeal I provided my ADDRESS TO THE COURT with my written submissions as a
CONSTITUTIONALIST that it was unconstitutional to compel anyone to vote, etc, and the court
upheld both appeals setting aside the convictions, without any challenge by any of the Attorney-
Generals who were served with a s78B NOTICE OF CONSTITUTUIONAL MATTERS.
25 My children have grown up but they are traumatised by how the Family court of Australia is bias
and as it appears to me judges are issuing orders before a trial is finished and so pre-determined
the orders. Which invalidate the orders made and subsequently made.
As a constitutional adviser to a law firm I found that the Registrar lies about matters, Such as
telling me that it will not make any decision at all when afterwards it is found the Registrar did
30 but did hide it from the lawfirm I assisted.
I exposed how I would attend to the Registry to search the file and observed lawyers scribbling
on the file they had collected.
I also exposed during hearings how opponent affidavit material had upto8 alterations on a page
which were not at all initialled by the deponent. Lawyers simply alter the court file documents.
35 Indeed, when I alerted Hase J about it then Hase J commented that they must have served me
then the wrong version but anyhow I know knew it. What kind of a system is this where lawyers
file in the court one version and serve a different version upon an opponent party?
Hase J refused my request to take the witness box, when Hase J made statements from the Bench
when in fact doing so wrongly. What kind of judicial officer gets involved to present so called
40 evidence from the bench and so totally incorrectly but then refuse to be cross-examined about it
to avoid being exposed!
I had one trial judge, even so I was not a party in the proceedings, to issue ex parte orders for a
police officer to provide to one of the parties copies of all my written material to this police
officer.
45 This submission is nowhere near setting out everything of the gross incompetent manner the
Family Court of Australia is dealing with matters. It seems that the trial judge wanted to pursue
me for CONTEMPT OF COURT. The police officer filed the lot on a CD because of the amount
of my writings to him. Nothing since then came from it because I am well aware how to write.
The fact that everything was written WITHOUT PREJUDICE somehow was of no concern to
50 the judge. In fact he didnt even bother to check what I had written first to see if it could be
released, after all the barrister who sought to information was his former mentor. (As records
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reveal when he was appointed judge) This is how Family Court of Australia judges are operating,
at least to my experiences, they abuse and misuse the legal powers they have and give scant
regard for the constitutional and other legal rights of some people.
I understand ample of people are contemplating suicide/murder/even mass murder because of
5 Family Court of Australia judges gross denial of justice.
My sweet revenge is to expose the rot in the various courts!

The above is mere so to say the tip of the iceberg but for now may indicate the Family Court of
Australia is a danger to the general population.
10
HANSARD 22-9-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

The Hon. J.H. HOWE: I will bow to the suggestion of the Chairman.

15 The Hon. J.H, CARRUTHERS (New South Wales)[3.46]: 1 hope the Committee will strike out this sub
clause. It is proposed by the legislative assemblies of New South Wales and South Australia, and by the
Council and Assembly of Tasmania, that the sub-clause should be omitted. I can apply no better arguments
than those which the hon. and learned member, Mr. O'Connor, used just now with reference to lunacy. The
hon. and learned member said that where a permissive power was given there was pressure brought to bear
20 for the exercise of that power, and that when it was exercised in one direction pressure was brought to bear
that it might be exercised to the fullest extent. Applying that argument to lunacy, if we had this power
exercised at all, we should find strong arguments used for the taking over of our lunatic asylums. If the power
in this sub-clause were exercised at all, a strong argument would be offered for the state taking over the
whole of the benevolent institutions of the various colonies which have to deal with children, and they would
25 become federal institutions. If you do that you must do what the hon. member, Mr. Howe, proposes. If you
interfere with the children in these institutions you will have to take over the institutions for the infirm and
the old. Now, there is a decided objection in this colony to any federal interference with what the people
conceive to be matters most sacred in the family. We have in this colony a law modelled upon the English
law dealing with the custody of children and with parental rights. That question of parental rights is one
30 which opens up a very large range of questions. We may have all sorts of interference between parents and
their children under a proposal of this character. The state laws, up to the present, have been perfectly
effective to deal with this question, and I think the argument of hon. members against applying federal action
to lunacy apply equally well against federal action in this matter. I shall apply those arguments now in my
vote.

35 [start page 1083]

The Hon. E. BARTON (New South Wales)[3.48]: This may not be a matter of as great importance as are
some of the other matters in the clause, but I think it is worth consideration. I will put it to my hon. friend that
if the commonwealth are empowered to legislate on the subject of marriage and divorce without having the
power to legislate as to the children, the issue of the marriage, this complication may arise-that the judge,
40 having to pronounce a decree of divorce or of judicial separation, and having also to deal with the question of
the custody of infants, if the commonwealth cannot legislate in regard to both subjects, will administer one
law with respect to the issue relating to divorce, whilst the consequent portion of the decree dealing with the
custody of the children will have to be under a totally different and varying law.

The Hon. I.A. ISAACS: Why not add the words "in relation to divorce"?

45 The Hon. E. BARTON: If the subclause can be amended in the direction which the hon. and learned
member suggests, my objection will have disappeared, and there will be a reasonable consistency in the law. I
think the difficulty might be overcome by inserting before the words "parental rights" the word "also," and at
the end of the sub-clause the words "in relation thereto."

Mr. SYMON (South Australia)[3.51]: Is it worth while to deal with the matter in that way? If you give the
50 federal parliament power in relation to marriage generally and divorce generally, then anything that concerns
parental rights and the custody and guardianship of infants is connected with either one or the other. It seems
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to me that if you intrust the federal authority with the power of dealing with marriage and divorce, which
involves everything relating to the highest earthly ties-that of marriage-it ought, consequent on that, also to
regulate the custody of infants. It does not involve what the hon. member, Mr. Carruthers, seems to
think is in the minds of many who see some objection to this-that it might empower the federal
5 authority to interfere with domestic relations in some mysterious manner so as to reduce children to a
position of slavery. This is a control that seems to me to be consequent upon marriage, and which might
come into operation, perhaps, in relation to all matters of divorce; but it is not confined to matters of divorce,
and might depend simply on marriage when the question of divorce does not arise. It will, perhaps, be better
to leave the sub-clause as it is and consider the matter further later on.

10 The Hon. E. BARTON: Before the hon. and learned gentleman sits down he will, perhaps, deal with what
I forgot, namely, a suggestion from the hon. member, Mr. Carruthers, that if this power were granted it would
involve the probability of the commonwealth having to take over the control of the institutions?

Mr. SYMON: I did not think that the hon. member, Mr. Carruthers, seriously meant that.

The Hon. J.H. CARRUTHERS: That argument was successfully used against me in regard to lunatics!

15 Mr. SYMON: I am sure that the hon. member will be able to successfully dispose of it when it is next used
against him. It would be just as reasonable to adopt the suggestion of the hon. member, Mr. Howe, and say
that the federal authority are to take control of all institutions for the care of the aged and infirm. I think that
hon. members will, on consideration, see that there is no parallel between the cases, and, that as this affects
one part of the relationship of the citizens to the commonwealth, it ought fairly to be under a uniform law
20 and under federal control.

The Hon. C.H. GRANT (Tasmania)[3.53]: I think that the words as they [start page 1084] stand,
"custody and guardianship of infants," are rather too wide. It seems to me that these words, without
any qualification, would apply to destitute children. It would be better for the state authorities to control
the custody and guardianship of infants, because they are immediately on the spot. They have opportunities
25 of inquiring into the relationship of the children and their parents, and into their condition if they are destitute
and neglected. Therefore, I think it is advisable to omit those words, and allow the sub-clause to remain as
proposed to be amended by the leader of the Convention.

The Hon. Sir J.W. DOWNER (South Australia)[3.54]: I think it would be better to leave the sub-clause
as it is. I can understand that it will be a very good thing for each state to make its own laws with
30 respect to parental rights and the custody and guardianship of children; but supposing that the
children went into another state, and were thus taken away from the law of which the previous state
approved, and came under the law of another state which had altogether a different method of dealing
with such matters, and under which the parent was not able to again get the custody of his child, or the
guardian was not able to again get the custody of an infant, what could he do? He could not proceed
35 under his own law. His own law might be good enough, but the person that he wanted to proceed
against would be out of the jurisdiction of his state.

Mr. SYMON: And the order would not have any force!

The Hon. Sir J.W. DOWNER: The order would not have any force. The result would be that, however
good his own law was, he would be unable to enforce it because the law of the other state was of a varying
40 character.

The Hon. J.H. CARRUTHERS: Sub-clause 26 provides for that!

The Hon. Sir J.W. DOWNER: That is only an evidence clause, and will not have the slightest effect in
this matter.

Mr. SYMON: The hon. and learned gentleman's point is a point of jurisdiction!

45 The Hon. Sir J.W. DOWNER: Yes; and it has nothing whatever to do with that. The order would be good
enough as a record of the action of the court in the first-named state, but it would not be a record of the court

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in the other state; nor would it make the law of the other state subsidiary to the law of the state which
contained that record.

The Right Hon. C.C. KINGSTON: Does the hon. and learned member read the word "recognition" as
meaning proof?

5 The Hon. Sir J.W. DOWNER: It is no more than recognition; it means what it says. The word is plain
enough.

The Hon. J.H. CARRUTHERS: Look at sub-clause 25, which says:

The service and execution throughout the commonwealth of the civil and criminal process, and
judgments of the courts of the states.

10 The Hon. Sir J.W. DOWNER: But it must be in respect of a matter over which the court has jurisdiction.

Mr. SYMON: Suppose you change the domicile!

The Hon. Sir J.W. DOWNER: That will not operate to give jurisdiction. I think that when we have given
the most sacred of all relations-the, relation of marriage-over to the commonwealth, and very properly, it
follows, as a matter of course, that we must do this. Parental rights-that is all we propose to give to the
15 commonwealth. The commonwealth parliament can make a definition and pass a uniform law.

Mr. SYMON: That is incident to the marriage law!

The Hon. Sir J.W. DOWNER: It comes from the marriage law, and ought to flow as a corollary. It is
a corollary as far as marriage is concerned.

[start page 1085]

20 The Hon. R.E. O'CONNOR: It would not necessarily follow the law of husband and wife!

The Hon. Sir J.W. DOWNER: We are only talking about parental rights; that is the right of the
parent over the child!

The Hon. J.H. CARRUTHERS: If the hon. and learned member is willing to hand over the rights,
why not the obligations?

25 The Hon. Sir J.W. DOWNER: If the hon. member would like them added I have no objection; but if the
hon. gentleman wants to exclude them, I cannot see that any difficulty need arise. So far as I know, the laws
of all the colonies are exactly the same in respect to the matters mentioned here, and there is very little
probability of their being any different, so far as parental rights and the custody and guardianship of infants
are concerned. We want to prevent the possibility of any difference, that is all, and to give the federal
30 parliament power to legislate on the subject if they please. I can see difficulties that might arise in the
enforcement of state laws through the child or infant being taken away from the custody of its parent
or guardian, and being out of the jurisdiction of the court of the state in which the parent or guardian
resides, and I think it is necessary to have one uniform law on this matter as well as in regard to
marriage and divorce.

35 The Hon. J.H. GORDON (South Australia)[3.59]: I think we are quarrelling about terms and not about
substance. I believe that the hon. member, Mr. Carruthers, agrees with almost everyone of us that as
regards parental rights and the custody and, guardianship of children so far as divorce is concerned,
power should be given to the commonwealth; but this clause goes much further and includes the whole
region of, parental rights and the custody and guardianship of children.

40 The Hon. E. BARTON: Put in the words "and in relation thereto" before "parental rights "!

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The Hon. J.H. GORDON: That will cover the whole ground. All our acts relating to the custody and
guardianship of children have relation to parental rights.

Mr. SYMON: Suppose a child is deserted?

The Hon. J.H. GORDON: That suspends the parental custody; but the parental liability remains. I
5 think that the amendment suggested by the hon. and learned member, Mr. Barton, covers the whole
ground.

The Hon. E. BARTON: I move:

That the figures "24" be omitted with a view to the insertion of the words "and in relation thereto."

This will confine the operation of the subclause to the rights and obligations arising out of divorce
10 suits. The other matters to which attention has been directed will be considered by the Drafting Committee.

The Hon. J.H. CARRUTHERS (New South Wales)[4.3]: I would point out that if we are going to deal
with the service and process of writs in regard to this matter in one state when the parent resides in
another, it will be just as well for the Drafting Committee to consider the aspect of the case in relation
to deserted wives. If the amendment of the hon. and learned member, Mr. Barton, is carried, I think
15 we might leave the matter to the Drafting Committee.

Amendment agreed to.

Sub-clause 24, as amended, agreed to.

END QUOTE

20 I hold that constitutionally the purported Commonwealth Powers (Family Law---Children) Act
1986(Vic) legislation to transfer legislative powers from the States to the Commonwealth is
unconstitutional as the parliament has no powers to deny the Supreme Court its jurisdiction. The
States created within s106 of the Commonwealth of Australia Constitution Act 1900 (UK)
subject to this constitution means the inclusion of separation of powers, etc. As such any
25 purported Family court order regarding children not being of a marriage, as was my daughter
while being a Ward of the Supreme Court, remains unconstitutional and ULTRA VIRTES.
.
I will however not go into further details about this at this moment. However my blog at
www.scribd.com/inspectorrikati has ample of documents about it and so have my published
30 books in the INSPECTOR-RIKATI series.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL

35 (Our name is our motto!)

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