Adams & Adams

[2007] FamCA 92

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS (NO. 4) [2007] FamCA 92

FAMILY LAW - Cross Examination Stopped – Puttage

APPLICANT: Mrs Adams

RESPONDENT: Mr Adams

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 2456 of 2006

DATE DELIVERED: 13 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Combes

SOLICITOR FOR THE APPLICANT: Jane Baldwin

THE RESPONDENT: In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Mrs Adams

Applicant

And

Mr Adams

Respondent

RULING

(ex tempore)

1. Before we recommence, I’ll just note on the transcript the following, which arises out of the ruling I have made to discontinue the cross examination of the husband.  The husband’s cross examination was concluded at approximately 2:40pm when otherwise the independent children’s lawyer would have been permitted to continue to ask him questions.  I make these comments now to make it abundantly clear to all participants in the hearing that it cannot subsequently be the case that the independent children’s lawyer is criticised for not putting something to the husband or for failing to ask him a question.  That is because the independent children’s lawyer is no longer at liberty to ask the husband any questions.

2. The reason that the husband’s cross examination was concluded was because of his refusal to cooperate, his refusal to obey a direction to go back into the witness box to recommence cross examination.  The matter proceeded as follows:

   HER HONOUR:   Go back into the witness box, please. [Mr Adams]..

   [MR ADAMS]:   Before I do that, Victoria.  I need to clarify four questions.

   HER HONOUR:   No, [Mr Adams].  Go back into the witness box, please.

   [MR ADAMS]:   Then I will sit right here then if you don't want to answer my questions.

   HER HONOUR:   [Mr Adams], I have delivered reasons for judgment in relation to the need to proceed with your cross‑examination.  Unless one of them is can you use the lavatory, there are no questions that shouldn't await the end of your cross‑examination.  I give you another opportunity to go back into the witness box.  If you do not go back into the witness box, I will record that you are no longer available for cross‑examination.

   [MR ADAMS]:   I am available, but you will be lying again, as usual, corrupt as you are, taking the law in your own hands (indistinct) I've got questions to ask you, unless you answer these questions, I'm not going into the witness box (indistinct) how am I supposed ‑ ‑ ‑

   HER HONOUR:   There is some difficulty with the sound, isn't there?  Is anyone else experiencing difficulty with the sound?

   MR COMBES:   Yes, your Honour.

   HER HONOUR:   [Mr Adams], your cross‑examination should proceed.

   [MR ADAMS]:   There are important questions which I need to ask you.  If I had a lawyer, my lawyer would be submitting those questions.

   HER HONOUR:   Yes.  But you've chosen not to have a lawyer.  What are the questions, [Mr Adams], and I'll see if I'll answer them, but this is the importance to your case, because when you are asked questions that you refuse to answer, that does not help your case.

   [MR ADAMS]:   Victoria, you haven't impressed me at all so far.  Number 1, I want to ask you, given the parliamentary reports on mental health issues of some judges, I want to ask - I think I'm entitled to know what is your mental health state, Victoria, because the connection you seem to draw between the things I tell you and your forgetful mentality of the things you said and the misappropriation ‑ ‑ ‑

   HER HONOUR:   [Mr Adams], you don't need to go further.  I'm not answering it.  Next question.

   [MR ADAMS]:   I haven't finished asking.  If you interrupt me,

   
   

   I will just sit here until I've finished asking my questions and ‑ ‑ ‑

   HER HONOUR:   No.  You ask the next question, please, [Mr Adams].

   [MR ADAMS]:   I asked the first question and I wasn't finished asking it.

   HER HONOUR:   No, [Mr Adams].

   [MR ADAMS]:   I'll just sit here then.

   HER HONOUR:   I'll ask you again, do you wish to proceed with your cross‑examination?  If you do not go back into the witness box to proceed with your cross‑examination, I will make a finding that you have refused to continue with your cross‑examination, the balance of your evidence will remain untested, and the risk to you is - and to [the child] - that your evidence will be regarded by me as of less weight than evidence of other persons who submit to cross‑examination or make themselves available.

   [MR ADAMS]:   We'll see about that.  You think about ‑ ‑ ‑

   HER HONOUR:   Thank you, [Mr Adams].  Will you go back into the witness box?

   [MR ADAMS]:   I'm not, until you answer my ‑ ‑ ‑

   HER HONOUR:   Thank you.  You can mute him, please.  It is now 2:40pm, and [Mr Adams] does not continue with his cross‑examination. 

3. I record here that the husband has throughout these proceedings referred to me variously by my given name, my initials and otherwise than by the title of my appointment.  Whilst that has been inappropriate behaviour in court, I have and do continue to consider it is in the best interests of the child that the trial proceed and is concluded.  All of this poor behaviour otherwise is an affront to the court.  Nevertheless it is necessary to conclude this matter in the child’s best interests. 

4. I have asked the husband if he was ready to proceed with his next witness to which he responded:

   Stop being so manipulative.  This is about my child, and your cold-hearted attitude as a woman towards children and the abuse of their fathers who are representing them, I consider that you are the one who needs to have a mental check.

5. On 19 January 2007, the husband gave an estimate of this matter as a matter likely to take in excess of two days.  He agreed that it would take less than five days.  Throughout these proceedings in the last seven days, he has re‑estimated that at 26 days.  From my observation of the husband’s conduct over the last six days, it is clear to me that he has a propensity to deliberately delay proceedings by making unreasonable demands, refusing to answer questions and refusing to obey directions.  

6. That concludes these comments. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ADAMS & ADAMS