Batey-Elton and Elton (No 2)
[2010] FamCA 271
•15 FEBRUARY 2010
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON (NO. 2) | [2010] FamCA 271 |
| FAMILY LAW – INJUNCTION – Injunction excluding person remaining in court on behavioural grounds |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| MG and MG [2000] FamCA 893; (2000) FLC 93-034 Halsbury’s Laws of Australia |
| APPLICANT: | Ms Batey-Elton |
| RESPONDENT: | Mr Elton |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| DATE DELIVERED: | 15 FEBRUARY 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 15 FEBRUARY 2010 |
REPRESENTATION
| THE APPLICANT: | IN PERSON |
| COUNSEL FOR THE RESPONDENT: | MR PAGE SC |
| SOLICITOR FOR THE RESPONDENT: | ROD MADSEN |
Orders
That until further order MR B is restrained from being in the court room of this Court during any proceedings between Mr Elton and Ms Batey-Elton.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: TVF 2250 of 2004
| MS BATEY-ELTON |
Applicant
And
| MR ELTON |
Respondent
REASONS FOR JUDGMENT
Mr B appears to be providing advice and assistance to the wife in these proceedings. For reasons which follow, I excluded him from being present in the court room on 15 February 2010 and made injunctions against him being present in any future court room involving these proceedings.
It is a drastic step to exclude any person from a court room but particularly a person who may be providing constructive assistance to a litigant in person. Except in certain circumstances, proceedings in this Court should be held in open court. Although anonymity attaches to all proceedings under the Family Law Act 1975 (Cth) (“the Act”), it is a fundamental tenet of justice that it be transparent. That however, must be subject to the right of the Court to control its process and ensure that proceedings are not disrupted not only to the disadvantage of the litigants but also to the resources of the Court.
Mr B is a disruptive influence.
In August 2009, I conduct proceedings relating to parenting orders between Ms Batey-Elton and Mr Elton and gave reasons for judgment. At that time, Mr B was providing some form of assistance to the wife. I made final parenting orders which have not been the subject of an appeal.
In my reasons for judgment, I said a number of things about Mr B. They were:
· The wife is in a relationship with Mr B;
· I was told by senior counsel for the husband that Mr B purports to be a lawyer;
· Mr B has apparently accompanied the wife for a long time in these proceedings;
· At various times he has endeavoured to speak for her and assist her;
· Senior counsel for the husband alleged that Mr B claimed to have legal qualifications but he had been refused admission as a legal practitioner in Queensland by the Court of Appeal in 2005.
In respect of the last-mentioned dot point, because of the unusual and unilateral nature of the orders I have made against Mr B, I have considered whether I am at liberty to take judicial notice of what occurred in the Queensland Court of Appeal.
There is no doubt that a court exercising jurisdiction in proceedings can take judicial notice of previous orders in those proceedings. (See W and W [2001] FamCA 1470; (2002) FLC 93-094). What I am considering here however is much wider.
In Mullen and Hackney London Borough Council [1997] 2 All ER 906, the court of appeal said:
It is well established that courts may take judicial notice of various matters when they are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary.
It would appear from the assertion made by senior counsel in August 2009 that the refusal of Mr B’s admission was a matter of common knowledge. As such, in addition to the judicial notice consideration, I can turn to s 144 of the Evidence Act 1995 (Cth). It reads as follows:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Mr B’s constant association and attendance with the wife would enable me to conclude that he is aware of the assertion about him being common knowledge and he has not denied it.
The common knowledge is confirmed by the decision of the Queensland Court of Appeal in a decision of 2005. Their Honours there refused Mr B’s admission as a legal practitioner. Their Honours referred to evidence before them in which it was said Mr B had made threats in a proceeding in the Federal Magistrates Court in which he was a party. Their Honours noted that even if the threats were genuinely held, they demonstrated an inability to distinguish between vigorous but legitimate advocacy of a position and a reaction to an adverse decision of the courts which is entirely unacceptable in an officer of the court. Their Honours also referred to proceedings in this Court.
Section 91 of the Evidence Act provides that evidence of a decision such as that of the Queensland Court is not admissible to prove the existence of a fact that was in issue in that proceeding. As such, I should normally not take into account as admissible evidence, Mr B’s behaviour that gave rise to the Queensland Court of Appeal’s decision. I do not.
I do however take into account two things. First, Mr B persists in maintaining he should advocate for the wife notwithstanding he has been refused that audience. Secondly and even if he was permitted to speak for the wife, the Queensland Court of Appeal has made a finding that Mr B fails to distinguish between what I would describe as objective advocacy and his own desire to articulate vociferous objection to the process of this Court.
Nothing I have seen would suggest Mr B has learnt anything from the Court of Appeal decision. Thus I respectfully join with the Court of Appeal in saying that:
Mr [B’s] conduct is inconsistent with the unique and indispensable functions of a legal practitioner in the administration of justice.
Prior to the proceedings in August 2005 a number of hearings were conducted by judges of this Court including Jordan J. In a hearing which was a prelude to the parenting proceedings, his Honour made an order for a psychologist to prepare a report about the relationship between the wife’s daughter and various adults. Presumably because of the nature of the relationship between the wife and Mr B, the psychologist was asked to interview Mr B. The psychologist said of Mr B:
He presented as a controlling man who maintained a self-focus in respect of his personal values and skill.
The file of these proceedings is in numerous boxes. The material is disjointed, emotive and at times, difficult to follow. Because of the absence of legal representation on behalf of the wife, I was required for these financial proceedings to trawl through material. Unlike the husband who provided a list of documents to be read, I was required to sift through all sorts of affidavits to seek out the details of the wife’s case. It is to be noted as a matter of record from the Court’s file that Mr B has been excluded from attendance with the wife when she was permitted to examine material produced under subpoenae.
With that simple background, relating to Mr B, I turn to the incident on 15 February 2010.
When the proceedings relating to the wife’s application under s 79A commenced on 15 February 2010, Mr B was seated beside the wife at the bar table. The wife requested that Mr B speak for her. I indicated that I had previously ruled that that was not going to happen.
I indicated to the wife that she could have assistance from any person she chose providing that person was not disruptive of the proceedings. In relation to the wife’s right to have Mr B speak for her and more importantly, his right of audience on her behalf, I refer to the judgment of Warnick J on behalf of the Full Court in these proceedings, where his Honour said:
3.I would not permit Mr [B] to speak on behalf of [the wife]. I would not do so for several reasons. It is the norm, for the very good reasons to which Mr Page referred, that advocates or speakers on behalf of litigants, be legal practitioners who are subject to all of the strictures and obligations that apply to them. Mr [B] does not fit into that category. It may be that in an extraordinary case a person not in that category might be permitted to speak on behalf of a litigant but, in my view, this is not one an extraordinary case. There are several reasons for that as well.
4.[The wife] concedes that she is able, in effect, to present and support her application. What she anticipates not being able to deal with, are responses. We do not yet know whether any response will be called for or whether it will contain any matter of some nature which troubles [the wife].
5.The next reason is as well one of weight in this consideration, that is, Mr [B] is a deponent in the very application in which [the wife] seeks that he speak, effectively in the role as advocate, and I have in mind the nature of the matters about which he deposes.
6.Finally, there is no medical certificate supporting what [the wife] claims, although the balance of the reasons have application, even if one accepts the position that [the wife] feels that she is in, in terms of her capacity to speak to a response.
In the judgment on 24 August 2009, I said that no-one objected to the presence of Mr B at the bar table however I expressed concern that his interruptions were noticeable including his agitation when counsel spoke and his consistent and loud discussions with the wife which were a distraction.
I explained to the wife the distinction between having someone act for or speak for her as an advocate as distinct from a person who might provide assistance to her. This was a matter about which there could be no misunderstanding because it had been ruled upon by me previously. The wife asked me to repeat the reasons and because I and the Full Court had previously indicated what role Mr B could fulfil, I declined. To repeat reasons would not only have been unnecessary, it was a time wasting exercise.
Mr B interrupted on a number of occasions and refused to be seated or leave the bar table when directed. It was clear to me that the wife was not going to accept my ruling nor was Mr B.
Mr B’s interruptions included statements by him to the effect that he was present to “ensure” that I complied with the law.
When the wife asserted she was being denied natural justice, I said I would hear her application for a stay of my earlier order that I not disqualify myself. The wife said that I could not hear the substantive financial case because she had lodged an appeal against my decision. When I indicated that if that was the position she was adopting based on advice, she was wrong. Mr B interrupted to say that he would not be “defamed from the bench”. When I said I would proceed to hear the application of the wife and explained what a stay application was, Mr B said that I was “running a star chamber”. I requested he leave the court but he refused. He said that the wife was not capable or arguing the case and it was unfair to make her do so. He then said:
Why don’t you comply with the law?
It was apparent to me that Mr B wanted not so much to provide assistance to the wife but to advocate for her. That was certainly her wish. Having regard to the matters mentioned above, that was inappropriate.
The difficulty was more pronounced however because of Mr B’s interruptions and refusal to recognize the rulings and authority of the Court. His presence was distracting and time-wasting.
It would appear from my observations on 15 February 2010 that matters have become worse and Mr B is more brazen.
Ultimately after I adjourned temporarily and requested the attendance of the Australian Federal Police, Mr B left the court.
At common law, a contempt in the face of the court consists of any act in a court which interferes with or tends to interfere the due administration of justice. That conduct must however be intentional. It has been said that conduct such as disrespectful behaviour in court, insults to the court and the interruption of court proceedings amount to contempt in the face of the court. (See Halsbury’s Laws of Australia).
Mr B’s behaviour is nothing short of contemptuous but I chose to exclude him so that the long-standing issues between the parties could proceed. I am concerned that any future involvement of Mr B will simply see a repetition of his behaviour.
Insofar as Mr B had intentions of acting as a “McKenzie Friend”, the issue of his inappropriateness even in that role can be seen from the criteria and description set out in the Full Court judgment of MG and MG [2000] FamCA 893; (2000) FLC 93-034 where Kay J with whom Holden and Mullane JJ agreed, said:
20.In Smith v R (1985) 159 CLR 532, on an application for special leave before the High Court, an issue arose as to whether or not an accused person was allowed to have a McKenzie friend at a trial. Gibbs CJ, whom Wilson, Brennan, Dawson JJ agreed, indicated as follows:
The question whether an accused person should be allowed to have a "McKenzie friend" present at his trial is very much a matter of practice and procedure, within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a "McKenzie friend" should always be refused. All the circumstances of the case must be considered in deciding upon the application.
…
22.In Collier v Hicks as far ago as (1831) 2 B & Ad 663, Lord Tenterton CJ said:
Any person whether he be a professional man or not may attend as a friend of either party and may take notes, may quietly make suggestions and give advice. But no-one can demand to take part in the proceedings as an advocate contrary to the regulations of court as settled by the discretion of the justices.
23.Extrapolating that into contemporary language, save for the leave of the Court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the Court on behalf of another person unless they are admitted to practice, and in this Court have signed the High Court roll of practitioners.
…
25.I think the dicta in the Bow County Court case is compelling. A litigant may seek assistance from any person providing that in so doing the orderly and expeditious conduct of proceedings is not interrupted. That assistance would usually mean being able to consult some person sitting in the body of the court from time to time. It would normally not mean allowing that adviser to take over the case and suggest every word that should be spoken. In some cases, where appropriate the judicial officer may allow the adviser or assistant to sit at the bar table and even speak to the Court (see Cooke and Stehbens (1999) FLC 92-839; (1998) 24 Fam LR 5).
Thus, it is clear that there are cases where an adviser or assistant can speak to the Court but not in the circumstances envisaged by Mr B nor having regard to his behaviour.
Having therefore indicated why Mr B should not advocate for the wife nor act as her assistant, I turn to the question of his public right to be present in the court.
It is a fundamental presumption of the common law which has been adopted by this Court that justice should be administered in open court. Open court means permitting the public to have an opportunity to hear how cases are heard. This Court protects its litigants by cloaking their identification with anonymity and s 121 of the Act protects their details from public consumption. It is the workings of the Court however which are open to scrutiny.
In Raybos Australia Pty Ltd and Jones [1985] 2 NSWLR 47, Kirby P (as he then was) recognized there were exceptions to this openness. He said:
cases where a court is charged with the responsibility for a child invoked by the Queen as parens patriae: cases where the court is charged with the responsibility for the mentally ill: cases where trade secrets, secret documents or communications or secret processes are involved: cases where disclosure in a public trial would defeat the whole object of the action (as in blackmail cases or cases involving police informers): to keep order in court: in certain circumstances of national security and in the performance of administrative or other action that may be properly dealt with in Chambers.
As can be seen, it is important that there is order in the Court. Contemptuous behaviour creates disorder. Leaving aside the flagrant challenge to the authority of the Court, such behaviour uses up valuable resources and adversely affects other people who want their cases heard.
Mr B shows contempt for the Court and disrupts its processes. He refuses to comply with directions to desist. There is no sign of his behaviour abating. There is no alternative other than to exclude him for the court room.
I have taken into account the wife’s assertion that she is incapable of conducting the case without either Mr B’s advocacy or assistance. That has to be a factor but weighed against all other considerations mentioned above, it is not decisive in her favour.
The wife has the right to appropriate and respectful assistance. Mr B cannot provide that.
The Court must control its own process. It is a fundamental principle of the administration of justice that both sides have an opportunity to be heard. Interruptions and the disruption caused by Mr B wasted significant time. His contempt for the Court and its processes is obvious. He is not an appropriate person to be permitted in the court room during these proceedings or at any time in the future relating to these proceedings until such time as he indicates that he will not act in a contemptuous way.
At the time of announcing the injunction against Mr B, he was not present in the court room. As a matter of necessity as well as justice, he needs to be served with a copy of the order and my reasons. I shall direct the registrar to serve Mr B with a copy of the order and these reasons by ordinary post to his last known address to the Court. As the wife has a long association with Mr B, I have little doubt she will bring the order to his attention.
I certify that the preceding Forty One (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 18 February 2010
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